C-272/86

4. The main problem in this case concerns proof of the circumstances which, in the (a) By prohibiting imports of olive oil from other Member States and from * Translated from the Portuguese. non-member countries, it has infringed 1 — OJ, English Special Edition 1966, p. 221. Article 30 of the EEC Treaty and Regu-

COMMISSION v GREECE

lation No 136/66/EEC, in particular 11. We already know that even in the Article 3 thereof. pre-litigation phase the Commission requested the Greek authorities to provide information concerning the administrative formalities applicable in Greece to the importation of olive oil from other Member (b) By prohibiting exports of olive oil, with States which, according to the complaints the exception of extra and fine quality made, resulted in the entry of that product virgin olive oil in packs not exceeding into Greek territory being either rendered five litres, it has infringed Article 34 more difficult or prevented. of the Treaty and Regulation N o 136/66/EEC, in particular Article 3 thereof. 12. Despite the Commission's repeated requests, the Greek authorities never provided the information requested, (c) By failing to provide the Commission confining themselves to stating — contrary with the information requested in that to the assertions of the traders connection, it has failed to fulfil its obli- affected — that 'the importation into Greece gations under Article 5 of the EEC of olive oil from EEC countries is unre- Treaty. stricted'.

OPINION OF MR CRUZ VILAÇA — CASE 272/86

10 January 1985 from the Secretary of State application, attack any specific provisions for the Economy to the Bank of Greece. which might be declared incompatible with the applicable Community law.

COMMISSION v GREECE

administrative practices contrary to the Community (1 January 1981) and the date Treaty or to secondary law. on which this action was brought (11 November 1986), Greece's only import of olive oil was 2 005 tonnes of refined olive oil from Italy which, moreover, was 28. If it can be proved, no other conclusion immediately exported to the Soviet Union. can be drawn than that the Hellenic Republic has failed to fulfil its obligations under Community law. 32. It also cites an article published in the specialist press in which specific reference is made to statements by the Greek Minister for Commerce to the effect that olive oil 29. The previous decisions of the Court would not be imported into Greece. indicate beyond doubt that mere adminis- trative practices, when duly documented, may be regarded as sufficient to justify a 33. Finally, the Commission mentions declaration, pursuant to Article 169, that a repeated attempts by traders to import Member State has failed to fulfil its obli- Italian olive oil into Greece, especially in gations under the Treaty. 2 1984 and 1985. The applications from the undertakings concerned were implicitly rejected, without explanation.

2. The import restrictions 34. In response to the first allegation, the Hellenic Republic took refuge behind the general statement that imports of olive oil 30. The Commission accuses the Hellenic into Greece are unrestricted and that the Republic of closing its market to exports absence of imports (with the exception of from other Member States and non-member the 2 005 tonnes re-exported to the Soviet countries, in breach of the fundamental Union), despite that fact, was attributable to rules on free movement of goods and those the lack of any need for them, since of the common organization of the market national production was sufficient to cover in oils and fats. domestic demand, and also to the fact, mentioned at the hearing, that prices on the Greek market are lower than those abroad.

justify the prohibition of exports of which it an application had to be submitted to a is also accused — that, for part of the banking establishment which, as the period concerned, the Greek market was Hellenic Republic itself conceded, 'is affected by a slump in production leading to designed not only to enable the person a severe shortage of olive oil. The Greek concerned to proceed with the import trans- Government's argument is thus vitiated by actions … but also to prevent the illegal its own contradictions. export of currency'. The actual documents relating to Alivar's complaints expressly mention submission of the application to a bank, a step to be followed by an ill-defined 37. Nevertheless, the existence of a 'doubt' bureaucratic procedure. In no case was any or a 'presumption' of an irregularity reply to the application received. underlying the absence of imports is not alone a sufficient basis for concluding that the Community rules have been contravened. 42. Those cases of difficulties encountered in import operations were not denied by the Greek Government; the latter merely stated 38. A short sentence in a magazine attri- that it considered them exceptional, and its buting a particular statement to a Greek Agents could only say, at the hearing, that Minister is likewise not conclusive. the relevant departments had told them that the complaints made to the Commission were without foundation but that they had 39. But in my view a different conclusion no evidence to support that assertion. In any may be drawn from the third fact (or set of event, they admitted that those complaints facts) relied upon by the Commission in might have been made as a reaction to the support of its allegation: the existence of 'inflexibility of the Greek administrative specific cases in which, without any expla- machine'. nation, authorization for imports of olive oil from other Member States was not given.

49. It was against that background that the 45. In those circumstances, the proven cases Commission attacked the restrictions placed of the obstruction of imports constitute, in by the Hellenic Republic in the way of my opinion, sufficient grounds for a finding exports of olive oil in its first letter calling against Greece. for observations and in its first reasoned opinion, dated 21 October 1985.

46. Thus, although it is not proved that barriers were placed in the way of imports of olive oil from non-member countries (for 50. Subsequently, it came to the which reason the application should be Commission's notice, as a result of fresh dismissed on that point), the information complaints from traders, that the Hellenic before the Court shows that the Hellenic Republic not only continued to prohibit Republic, by preventing imports into Greece exports of extra and fine quality olive oil of olive oil from other Member States, but had also extended the prohibition to all infringed Article 30 of the Treaty and types of edible olive oil and lampante grade Article 3 of Regulation No 136/66/EEC. olive oil for industrial use. Only exports of extra and fine quality olive oil in containers not exceeding five litres were allowed. 3. The export restrictions

51. Therefore, on 10 April and 26 June 47. In February 1985, the Commission, 1986 the Commission sent a further letter alerted by the complaints made and infor- calling for observations and a further mation which came to its notice, sent a telex reasoned opinion, extending its complaints message to the Greek Minister for Agri- to all the abovementioned grades of olive culture requesting explanations concerning oil. the possible existence of restrictions on bulk exports of extra and fine quality olive oil to other Member States and non-member countries. 52. It was also in those broad terms that, with respect to exports, the Commission defined the subject matter of the present 48. By letter of 14 February, the Greek Treaty-infringement proceedings in its Minister informed the Commission that the application.

61. In any event, the Hellenic Republic is 56. It must be stated that the Greek not entitled to adopt, in place of the Government's defence is without foun- Council, restrictive or stabilizing measures dation. which only the Council has the authority to adopt.

57. In fact, in order to 'mitigate the effects of harvest fluctuations on the balance 62. Accordingly, it only remains for me to between supply and demand and in this way state that the Hellenic Republic, by prohi- to stabilize consumer prices', Article 13 of biting exports of extra and fine quality olive Regulation N o 136/66/EEC provides for oil between 10 January and 10 June 1985, machinery whereby 'the Council, acting in has failed to fulfil its obligations under accordance with the voting procedure laid Article 34 of the EEC Treaty and under down in Article 43 (2) of the Treaty on a Regulation No 136/66/EEC, in particular proposal from the Commission, may require Article 3 thereof.

COMMISSION v GREECE

63. (b) The Commission maintains, and 18 November 1986 by Greek and however, that, even after the period Italian traders who had tried in vain to mentioned in the foregoing paragraph, the export edible olive oil in bulk from the Hellenic Republic continued to prohibit Hellenic Republic. exports of olive oil, extending the prohibition to all qualities of the product, with the exception of edible olive oil in packs not exceeding five litres and olive- 68. In my opinion, the evidence produced residue oil in any form. in these proceedings by the Commission does not, unfortunately, enable firm conclusions to be drawn concerning the problem under discussion.

65. It also asserts that the fact that, during the 1985-86 season, 65 000 tonnes of olive 70. The Greek Government has also given oil in bulk were exported proves that a its own view of those causes, linking them quota was imposed and that there was State with the eating habits of the Greek people, intervention in the olive oil market, who have the highest per capita particularly since, with the exception of consumption of olive oil in the Community 10 000 tonnes (exported by private traders), (20 kg), absorbing nearly all domestic all those quantities were exported through production. the Central Cooperative Association of Olive Oil Producers and, to a large extent, in fulfilment of contracts between States. 71. As regards the fact that 8 5 % of the exports of olive oil in bulk passed through the Elaiourgiki (cooperative association), the Greek Government explains that it is the 66. In the Commission's view, that confirms largest olive oil producing cooperative and a number of articles which appeared in a has large stocks which it was able to export specialized magazine, and the observations without difficulty. of a group of Commission officials who visited Greece in September 1985.

72. Furthermore, the press articles mentioned can be regarded only as serving to sound an alert, not as conclusive 67. In the alternative, the Commission evidence; likewise, the reference to the relied upon and produced a list of 12 information obtained by the group of complaints made between 9 January 1985 Commission officials is not backed by any

OPINION OF MR CRUZ VILAÇA — CASE 272/86

79. Hence, as far as the alleged restrictions 73. Finally, the complaints made by the on exports after 10 June 1985 are traders are similarly not supported by the concerned, I am of the opinion that the necessary firm documentary evidence to action should be dismissed. show whether or not they are well founded. 4. Breach of the duty of cooperation laid down in Article 5 of the EEC Treaty 74. The foregoing findings reflect the diffi- culties encountered by the Commission in 80. The Commission considers that the investigating and proving the infringement Greek Government, by refusing or failing to of which indications had come to its notice. provide the Commission with the infor- mation requested, and by excessively delaying the transmission of such infor- mation, has failed to fulfil its obligations 75. The fact is that those difficulties were under Article 5 of the EEC Treaty. largely caused by a lack of cooperation on the part of the Greek authorities, as we shall see in due course. 81. In fact — as is already apparent from what I have said so far — the conduct of the Hellenic Republic appears deserving of criticism. It should be borne in mind that on 76. It is also true that the circumstances 13 August 1984 the Commission sent to surrounding the present application seem to Greece a telex message requesting infor- indicate that something is amiss as regards mation on the restrictions on imports of the Hellenic Republic's understanding of olive oil and, in particular, on the two the requirements of Community law and specific cases of refusal to allow imports, compliance therewith. together with details of the administrative formalities on the basis of which the restrictions had been introduced; in the absence of any reply, the request was repeated on 4 October and 28 November 77. Furthermore, the representatives of the 1984. Greek Government admitted that exporters may be entitled to complain about problems connected with the bureaucracy of the 82. Not until eight months after the first Greek administration. telex message — on 4 April 1985 — did the Greek authorities reply, merely stating that the importation of olive oil into Greece from EEC countries was unrestricted. 78. But even that admission cannot be relied upon for a declaration of infringement based on mere indicia, 83. The lack of a spirit of cooperation on supported by evidence whose reliability has the part of the Greek authorities was again yet to be proved. It does not seem to me evident when it was asked, repeatedly, by therefore that, in the present case, there are the Court of Justice to explain the adminis-

(a) it prevented imports of olive oil from a n o t h e r M e m b e r State by requiring, by w a y of administrative b a n k practice, the submission of an application w h i c h , w i t h o u t giving any explanation, it failed to g r a n t ;

(b) it prohibited exports of extra a n d fine quality olive oil, at least between 10 J a n u a r y and 10 J u n e 1985;

3 — Commiision v Hellenic Republic [1988] ECR 1835.

OPINION OF MR CRUZ VILAÇA — CASE 272/86

(c) by omitting to provide full information regarding the alleged facts or to provide copies of the applicable national provisions, it failed in its duty of cooperation with the institutions which is incumbent upon the Member States with a view to the attainment of the objectives of the Treaty.

89. For the rest, the action should be dismissed.