C-194/85
ECLI:EU:C:1987:300
- Súd
- Súdny dvor Európskej únie
- IČS
- 61985CC0194
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR DA CRUZ VILAÇA — JOINED CASES 194 AND 241/85
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 18 June 1987 *
Mr President, treatment than the Member States of the Members of the Court, Community.
3. For that reason, I propose to deal in the 1. The Court of Justice is called upon to first place with Case 194/85. adjudicate on two actions which were brought by the Commission against the Hellenic Republic for failure to fulfil its 4. I — Before I begin, however, a obligations and were joined in view of the preliminary point concerning the extension fact that they are interconnected. In the first of the subject-matter of the dispute must be action the Commission seeks a declaration resolved. that the Hellenic Republic has failed to fulfil its obligations under Article 30 of the 5. In its applications the Commission relies EEC Treaty by making the importation of essentially on Greece's failure to fulfil its bananas which originate in other Member obligations under Article 30 of the EEC States or which are in free circulation there Treaty and Article 3 (1) of the Lomé subject to the grant of an import licence, Convention. The charges formulated during and by systematically refusing to issue such the preliminary non-contentious procedure a licence in practice, whilst in the second are based on the same grounds. action the Commission seeks a declaration that the Hellenic Republic has failed to 6. The procedure was set in motion and the fulfil its obligations under the Lomé application was lodged during the transi Convention by prohibiting the importation tional period established by the Act of bananas originating in ACP countries. concerning the conditions of accession of the Hellenic Republic to the European Communities ('the Act of Accession'). However, at the hearing, which was held just after the expiry of the transitional period on 31 December 1985, the Agent for 2. I would emphasize, first of all, that the the Commission sought to extend the Court's decision concerning the charge that application to the period subsequent to that Greece has failed to fulfil its obligations date as well. under Article 3 (1) of the Lomé Convention by prohibiting the importation of bananas from ACP countries (Case 241/85) depends 7. Notwithstanding the fact that the on its decision concerning the legality of the grounds on which the application is based measures adopted by Greece in connection are essentially the same now as they were with the importation of bananas which before the end of the transitional period originate in other Member States or which following Greece's accession, I consider that are in free circulation there (Case 194/85), the Commission's claim is unjustified. in view of the fact that Article 6 of the Lomé Convention does not permit the ACP 8. When charged with failing to fulfil its countries to be accorded more favourable obligations, the Greek Government
* Translated from the Portuguese.
COMMISSION v GREECE
defended itself, during the preliminary 13. The defendant must always have at its non-contentious procedure and in its disposal in relation to each charge the full defence to the Commission's application, by range of defences guaranteed to it in relying — as it was entitled to — on Article proceedings which run their full course. 65 (2) of the Act of Accession, that is to say on the rules in force at the time. 14. If it were otherwise, that would constitute an improper extension of the subject-matter of the application, which is prohibited by Articles 38 (1) (c) and 42 of the Rules of Procedure and which the Court 9. If the procedure had ended before the has invariably penalized in its decisions. 1 expiry of the transitional period, no problem would arise and only the legal position 15. The classic situation in which the during that period would be relevant. It subject-matter of the dispute is amended would make no sense in those circumstances (and in which different, supposedly to ask the Court to assess a future situation wrongful, conduct is alleged, whilst the in advance. rules applicable remain the same) has its symmetrical counterpart in this case, and the same legal effects must be associated with it.
10. The fact that the procedure, which was 16. The application must therefore be set in motion whilst the transitional assessed in the light of the factual and legal provisions of the Act of Accession were in situation prevailing at the time when it was force, was subsequently extended cannot lodged (taking into account the preliminary influence the applicant's procedural non-contentious procedure), since that is position. required by the rights of the defence.
17. In this case, that conclusion is not affected in any way by the fact that the Commission sent the Greek Government a 11. As there has been a change in the rules second reasoned opinion. applicable to Greece, the defendant cannot now be required to adjust its defence in 18. A second opinion was issued because accordance with the new legal position, the approach taken by Greece in its defence, particularly since at the time when the and in particular the explanations which it change occurred the written procedure in furnished in response to the first reasoned the contentious proceedings had already opinion when it had recourse to Article 65 come to an end (the rejoinder was (2) of the Act of Accession, obliged the submitted on 5 December 1985). Commission to amend its arguments accordingly.
19. That is why the second reasoned opinion focuses essentially on an argument 12. Nor would it make sense, on the other hand, to require the defendant — as the 1 — See, for instance, the judgment of 25 September 1979 in Commission seems to demand — to state its Case 232/78 Commission v France [1979] ECR 2729; judgment of 9 December 1981 in Case 193/80 Commission views as from the commencement of the v Italy [1981] ECR 3019; judgment of 8 February 1983 in proceedings on a future situation and to Case 124/81 Commission v United Kingdom [1983] ECR 203; judgment of 22 March 1983 in Case 42/82 defend itself on the basis of a hypothetical Commission v France [1983] ECR 1013; judgment of 27 set of rules, however foreseeable those rules March 1984 in Case 50 / 83 Commission v Italy [1984] ECR 1633; and judgment of 15 January 1986 in Case 121/84 might be. Commissioni Italy [1986] ECR 107.
OPINION OF MR DA CRUZ VILAÇA — JOINED CASES 194 AND 241/85
which is clearly set in the context of Article 'In respect of products not covered, on the 65 (2) of the Act of Accession. date of accession, by a common organ ization of the market, the provisions of Title II concerning the progressive abolition of charges having equivalent effect to customs 20. The subject-matter of the application duties and of quantitative restrictions and was thereby established and it cannot be measures having equivalent effect shall not either extended or amended. apply to those charges, restrictions and measures if they form part of a national market organization on the date of accession. 21. II — I now turn to the issues raised in Case 194/85.
This provision shall only apply until the common organization of the market for 22. At issue here is an order of the Greek these products is implemented and not later Minister for Trade, dated 24 December than 31 December 1985 and to the extent 1980 and periodically renewed, which strictly necessary to ensure the maintenance makes the importation of bananas into of the national organization.' Greece as from 1 January 1981 conditional on the issue of a licence. In addition, the Commission finds — and the Greek Government does not dispute — that applications for the issue of an import 26. The Commission, for its part, chal licence are systematically refused in practice. lenges the argument put forward by the Greek Government on the ground that, if a national market organization were recognized to exist — which in its view is 23. According to the Commission, both the not the case — the absolute ban on the requirement of an import licence and the importation of bananas would be incon systematic refusal to issue such a licence are sistent with Community law since, as Article 65 (2) of the Act of Accession provides, contrary to Article 30 of the EEC Treaty. quantitative restrictions and measures having equivalent effect are permitted only 'to the extent strictly necessary to ensure the maintenance of the national organization'. 24. In its defence, however, the Greek Government refers, as we have seen, to the existence of a national market organization covering the production and marketing of bananas, which, given the absence of a 27. Accordingly, two problems need to be common organization of the market in that resolved. In the first place, it is necessary to sector, supposedly makes it possible, ascertain whether or not in Greece there is a pursuant to Article 65 (2) of the Act of national market organization for bananas, Accession, to derogate from the rules on the and secondly, if there is such an organ free movement of goods. ization, it is necessary to analyse the relationship between the measures adopted and the maintenance of the national market organization in order to determine whether 25. I would recall that Article 65 (2) is those measures are strictly necessary for the worded as follows: attainment of that objective.
COMMISSION v GREECE
1. Is there a national market organization? and of the Greek authorities' inability to control the marketing circuits.
28. In challenging the contention that in 32. Hence the measures enacted by the Greece the production and marketing of Greek authorities concerning the production bananas are covered by a national market and marketing of bananas are unlikely to organization, the Commission takes as its achieve the objectives of a national market basic premise the Court's definition, organization, namely the stabilization of the according to which a national organization market, security of supplies at reasonable is 'a totality of legal devices placing the prices to the consumer, optimum utilization regulation of the market in the products in of the factors of production and so on. question under the control of the public authority, with a view to ensuring, by means of an increase in productivity and of optimum utilization of the factors of 33. According to the Commission, excessive production, in particular of manpower, a sums are spent in order to maintain a costly fair standard of living for producers, the and inadequate crop of poor quality for the stabilization of markets, the assurance of benefit of a tiny number of growers and supplies and reasonable prices to the traders, to the detriment of the vast majority consumers'. 2 of consumers.
34. That view, of course, is not shared by 29. According to the Commission, it cannot the Greek Government, which claims that be denied that the Greek authorities Greece has for some years had a genuine adopted a series of measures designed to national market organization for bananas, protect domestic production of bananas characterized by a number of measures (which is restricted in practice to the island which constitute as many instruments for of Crete) and to regulate the marketing of achieving the objectives laid down by the such bananas. Court when it defined such organizations in the Charmasson judgment.
30. In the Commission's view, however, those measures are not sufficient for the 35. In that connection, the Greek system in force in Greece to be regarded as Government refers to the following series of a national market organization. measures:
(a) the grant of different kinds of financial 31. The Commission lays emphasis on the aid to banana growers, including credit following facts: such bananas are small and facilities, direct subsidies and aid to of poor quality; even so, they are unob raise the crop yield; tainable for long periods; in the circum stances, the sale of those bananas lends itself to speculation and they are sold at very high (b) the grant of other forms of production prices; all that is the result of extremely high aid, including the carrying out of production costs in return for a small crop technical and economic studies and experimental research, and the compi 2 — Judgment of 10 December 1974 in Case 48/74 Charmasson [1974] ECR 1383, at pp. 1396 and 1397. lation of statistical returns and records;
OPINION OF MR DA CRUZ VILAÇA — JOINED CASES 194 AND 241/85
(c) the fixing of maximum prices for sales go some way towards meeting that to the public, taking into account country's demand for bananas, production production and transport costs, a fair of which amounts to between 4 000 and return guaranteed to traders and a 5 000 tonnes per annum. Moreover, the fact reasonable level of prices for consumers; that banana growing is restricted to the island of Crete is evidence of the optimum utilization of the factors of production since that is where climatic conditions are most (d) the determination of quality suited to the cultivation of that crop. requirements and other standards which bananas placed on the market must satisfy; 38. The Greek Government does not claim that all those objectives are simultaneously achieved to the same degree. However, (e) the improvement of marketing circuits referring to the Court's judgments in and of the distribution network by the Balkan-Import-Export 3and Beus, 4it argues grant of licences to small retailers; that, as was the case with regard to the application of the common agricultural policy, the establishment of an appropriate (f) the monitoring of external trade; scale of priorities for the objectives pursued making the importation of seed- enabled it to give precedence to developing the cultivation of bananas and to ensuring a producing plants subject to the grant of fair standard of living for banana growers, import authorizations and to plant- without demanding excessive sacrifices on health inspections; since 1969 the ban the part of consumers. on the importation of bananas has been replaced, exceptionally and for short periods, by authorization to import them in small quantities, which has been 39. How is the situation to be assessed from offset by the imposition of a counter that point of view? vailing duty; at present, as we know, the importation of bananas is subject to the grant of a licence, which is systemat 40. To begin with, I would recall that, as ically refused. the Court pointed out in Charmassen, 5the objectives of a national market organ ization, for the purposes of Article 43 et seq. 36. Those measures are implemented by of the EEC Treaty, are analogous on a different bodies, including the Ministry of national level to those pursued by a Agriculture, agricultural cooperatives and 'common organization of the market', as the Agricultural Bank of Greece. they are set out in Article 39 of the EEC Treaty, to which Article 40 (2) refers. Moreover, the measures forming part of such an organization must contribute 37. According to the Greek Government, towards the attainment in general terms of those measures as a whole contribute the objectives of the EEC Treaty, as Article towards the stabilization of the market and 38 (2) of the Treaty presupposes. the fixing of reasonable prices for the consumer. Furthermore, in conjunction with 3 — Judgment of 24 October 1973 in Case 5/73 BMan-Import- the consumption of other kinds of fruit, Export [1973] ECR 1091. which are grown in large quantities in 4 — Judgment of 13 March 1968 in Case 5/67 Beus v Haupt- Greece, they ensure security of supplies and zollamt München [1968] ECR 125. 5 — Charmasson, supra, paragraph 24 of the decision.
COMMISSION v GREECE
41. In my view, it is legitimate to question cannot be automatically applied as whether the measures implemented by the precedents since in those two judgments the Greek Government are the ones most Court formulated, with regard to the recon suitable for achieving the general objectives ciliation of the objectives of the common of Article 39. In particular, it is unclear to agricultural policy and the possibility that what extent those measures can be regarded one objective may in economic terms take as contributing towards 'the rational devel precedence over another, a recommendation opment of agricultural production' and 'the addressed to the Community institutions optimum utilization of the factors of and not to the Member States. However, production'. The Greek Government itself the thinking behind the Court's reasoning in acknowledges that, on the evidence, Greek those two judgments is wholly applicable to bananas cannot compete — in terms of a case involving a national market organ quality and yield — with bananas imported ization covered by a Community Treaty and from other Member States and from operated by a Member State. non-member countries (and it has for that very reason applied measures prohibiting imports), with the result that, as became apparent at the hearing, it seems prepared 45. Moreover, the measures adopted by to depart from the approach it has hitherto Greece are on the whole consistent with taken and studies are being carried out with Article 40 (3) of the EEC Treaty and some a view to switching over to a different type of them coincide with those which are of crop. expressly referred to in that provision.
42. Moreover, the Greek Government does 46. I believe that to extend the Court's not defend the effectiveness of the system power of review to an analysis of whether with conviction, and in particular the ability the measures are appropriate to the of the system to prevent speculation. objectives pursued would involve an assessment of reasonableness and effec tiveness, which goes beyond the scope of a review of legality. 43. There is no doubt, however, that, in the light of the economic policy decisions previously taken by the Greek authorities, the measures at issue are consistent with the 47. Furthermore, it is necessary to bear in objectives they pursue. mind the absence of a common organization of the market in this sector, which reflects the fact that less importance is attached to 44. Moreover, although it cannot be said the requirements resulting from the need to that all — or even the majority — of the achieve the objectives of the common agri objectives of the common agricultural cultural policy in this area. policy, as set out in Article 39 of the EEC Treaty, have been achieved, or are effec tively being pursued, by the organization set up, it seems to me to fulfil the essential 48. In any event, it is clear that the aim of minimum requirements for recognition as a Article 65 (2) of the Act of Accession was to national market organization in the light of strike a temporary compromise involving the Article 65 (2) of the Act of Accession. attainment to a lesser degree of the Clearly, Balkan-Import-Export and Beus objectives of the EEC Treaty in the field of
OPINION OF MR DA CRUZ VILAÇA — JOINED CASES 194 AND 241/85
agricultural policy by allowing, during the can be treated as measures strictly necessary transitional period, the retention of to ensure the maintenance of the national provisions which in normal circumstances market organization for bananas in Greece. would be incompatible with the application of Community rules.
53. That is the view taken by the Greek Government which considers that, if the 49. No doubt the national market organ importation of bananas were permitted ization for bananas in Greece does not during the transitional period provided for deserve the top prize for quality, but I am in Article 65 of the Act of Accession, it compelled to conclude that, in view of its would not only disrupt production and lead characteristics, it qualifies as a national to the financial ruin of thousands of banana market organization for the purposes of growers but also compel the State to Article 65 of the Act of Accession. abandon its financial programmes and investments.
50. The fact that the latter provision is applicable means, therefore, that during the 54. The Commission takes a different view. period laid down therein Greece may It considers that since the provision at issue continue to impose in its external trade constitutes an exception to the principle of charges having equivalent effect to customs the free movement of goods, it must be duties, quantitative restrictions and given a restrictive interpretation. measures having equivalent effect, in so far as such charges, restrictions and measures form part of the national market organ ization in existence at the date of accession. 55. In its view, that is apparent from the Court's judgment of 29 March 1979 in Case 231/78, 6all the more so, moreover, since the adverb 'strictly' used in Article 65 (2) 51. However, that possibility is not auto was not used in the corresponding provision matically applicable, as it depends on (Article 60 (2)) of the 1972 Act concerning fulfilment of the condition laid down in the the conditions of accession to the European second subparagraph of Article 65 (2), Communities of the Kingdom of Denmark, which reads as follows: 'This provision shall Ireland and the United Kingdom of Great only apply ... to the extent strictly Britain and Northern Ireland. necessary to ensure the maintenance of the national organization'.
56. In my view, it is quite clear that the Commission is right. The provisions of the 2. Is the measure strictly necessary? Act of Accession must be interpreted with reference to the foundations of, and the 7 system established by the Community, which are set out in Article 35 of the Act of 52. Now it is necessary to ascertain whether Accession concerning the abolition, as from the requirement of a licence to import the date of accession, of quantitative bananas originating in other Member States or in free circulation there and, further still, 6 — Commission v United Kingdom [1979] ECR 1447, at the systematic refusal to issue such a licence, p. 1460, paragraph 13 of the decision. — Commission v United Kingdom, cited above, paragraph 12 which amounts to a total ban on imports, of the decision.
COMMISSION v GREECE
restrictions and any measures having equi agricultural product protected by a national valent effect as between Greece and the market organization into line with the other Member States of the Community. requirements of the common market during the transitional period laid down.
57. Similarly, since Article 65 of the Act of 60. The derogations permitted on the basis Accession relates to trade in agricultural of those provisions must therefore be products, it must also be interpreted in the implemented in such a way as to facilitate light of the Treaty provisions concerning the attainment of the objectives of the EEC the common agricultural policy, towards the Treaty and the application of all its rules. attainment of which it must make every That would seem to follow from the possible contribution. 7 combined provisions of Articles 2 and 9 of the Act of Accession and has already been stated by the Court in connection with the 58. Furthermore, according to the 10 1972 Act of Accession and the transitional consistent case-law of the Court concerning period laid down by the Treaty. 11 the transitional period laid down by the Treaty, the derogations from Article 30 of the EEC Treaty provided for in the Act of 61. However, it is clear in this case that the Accession are valid only during the said almost complete ban on the importation of transitional period. Upon the expiry of that bananas into Greece not only did not make period, Article 30 is directly applicable even it easier to apply the Community rules at in respect of agricultural products (such as the end of the transitional period, but bananas) for which no common organ instead constituted a virtually insur ization of the market has yet been estab mountable barrier to the adaptation of the lished, and that is not precluded even by the relevant national rules. operation of a national market organ ization. 8 That has been the position in Greece since 1 January 1986, as is clear 62. In those circumstances, the supply of from Articles 2 and 9 of the Act of bananas on the Greek market permits no Accession and is expressly laid down by the more than a very low annual consumption second subparagraph of Article 65 (2), per head of the population (0.44 to 0.55 kg whose wording was evidently designed to per inhabitant compared with an average of avoid the difficulties raised by the wording 7 kg in the other Member States) and the of the second subparagraph of Article 60 (2) situation has not improved with the passage of the 1972 Act of Accession. 9 of time.
59. The aim of provisions such as those of 63. To claim, as the Greek Government Article 65 of the Act of Accession is to does, that the possibility of consuming other enable a State which accedes to the kinds of fruit justifies the adoption of the Community gradually to bring its pro measure and raises total consumption to an duction and marketing structures for an acceptable average amounts to an attempt to legitimize a practice which has already been 12 7 — Commission v United Kingdom, cited above, paragraph 12 censured by the Court in the context of of the decision. 8 — Judgment of 16 March 1977 in Case 68/76 Commission v 10 — Commission v United Kingdom, supra, paragraphs 10 and 11 France [1977] ECR 515, at p. 531. See also Charmasson, of the decision. supra, paragraph 15 of the decision, and Commission v United Kingdom, supra, paragraph 15 of the decision. 11 — Charmasson, supra, paragraphs 16 and 17 of the decision. 9 — Commission v United Kingdom, supra, paragraphs 16 and 17 12 — See judgment of 12 July 1983 in Case 170/78 Commission of the decision. v United Kingdom [1983] ECR 2265.
OPINION OF MR DA CRUZ VILAÇA — JOINED CASES 194 AND 241/85
the competitive relationship between its obligations under Article 3 (1) of the products capable of satisfying the same Lomé Convention in so far as it prohibits needs of consumers. imports of bananas originating in ACP countries.
64. Moreover, the Commission is justified in contending that the objectives pursued by 68. Article 3 (1) lays down a prohibition on the Greek Government can be achieved by the imposition of quantitative restrictions other measures which are far less and measures having equivalent effect on detrimental to freedom of trade within the the importation into the Community of Community. The liberalization of imports, products originating in ACP countries, accompanied by a system of controls or whose scope is evidently the same as that of quotas, for instance, would be a flexible the prohibition in Article 30 of the EEC response to the twin need to protect Treaty. domestic production and to adjust to the system of total liberalization applicable as from 1 January 1986. Moreover, a gradual easing of restrictions would make it possible 69. The Greek Government's defence is to test the reaction of the market and to based on arguments of the same kind as bring the measures adopted suitably into those advanced in Case 194/85; thus it line with it. relies on Article 65 (2) of the Act of Accession as well as on Article 6 of the Lomé Convention, which does not permit the ACP countries to be treated more 65. Since, therefore, the first subparagraph favourably than the Member States of the of Article 65 (2) of the Act of Accession is Community. inapplicable, the general rule in Article 35 on the prohibition of quantitative restrictions on imports and measures having equivalent effect is applicable. 70. I have already reached the conclusion that the considerations relied upon by Greece in Case 194/85 are unfounded. It follows not only that its arguments in Case 66. Hence the rules that were in force in 241/85 are likewise unfounded, for exactly Greece even during the transitional period, the same reasons, but also that its recourse which created a barrier to intra-Community to Article 6 of the Lomé Convention is trade, and their practical application, which meaningless. led to a total ban on imports, are contrary to Article 35 of the Act of Accession and Article 30 of the EEC Treaty, as the Court has consistently held since its judgment in 71. IV — With the Court's consent I wish to Dassonville. 13 refer, lastly, to the Greek Government's argument that the Greek Council of State has already stated its views on the system at issue and has concluded that the contested measures are lawful. 67. Ill — I now turn to the allegation in Case 241/85 that Greece has failed to fulfil
13 — Judgment of 11 July 1974 in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, at p. 852, paragraph 5 of the 72. The case-law of the Court is quite clear decision. on this point: in the case of Community
COMMISSION v GREECE
rules which are directly applicable, the 73. It follows that the decision of the Greek existence of remedies available through the Council of State is not relevant for the national courts cannot prejudice the making purpose of finding a solution in these of the application referred to in Article 169 proceedings which is in keeping with of the EEC Treaty since the two procedures Community law and with the exercise by 4 the Court of Justice of the powers conferred have different objectives and effects. 1 upon it by the Treaty.
74. V — In conclusion, I suggest that the Court declare that, by making the importation of bananas which originate in other Member States or which are in free circulation there subject to the grant of a licence and by systematically refusing to issue such a licence, the Hellenic Republic has failed to fulfil its obli gations under Article 35 and the second subparagraph of Article 65 (2) of the Act of Accession in conjunction with Article 30 of the EEC Treaty, and that by applying the same system to imports originating in ACP countries it has also failed to fulfil its obligations under Article 3 (1) of the Lomé Convention.
75. The declaration that Greece has failed to fulfil its obligations relates only to the transitional period provided for in the Act of Accession, since the period thereafter, which commenced after the end of the written procedure, was referred to by the Commission only at the hearing.
76. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. I do not believe that the circumstance which I have just mentioned, concerning the period following the end of the transitional period, constitutes a ground for not applying that general rule concerning the appor tionment of the costs to this case.
14 — See, for instance, the judgment of 7 February 1970 in Case 31/69 Commissionv Italy [1970] ECR 25.