C-8/87

Mr President, Andrianou-Gizinou brought an action Members of the Court, before the Polimeles Protodikio, Athens, against the refusal to grant it aid, and by a 1. In proceedings between Andrianou- decision of 30 June 1986 that Court Gizinou & Co. and the Greek finance referred the following questions to the authorities concerning investment aid, the Court of Justice for a preliminary ruling: Polimeles Protodikio (High Court), Athens, has asked the Court to interpret Council (a) Pursuant to Articles 4 and 5 of Regu­ Regulation No 389/82 of 15 February 1982 lation (EEC) No 389/82, are Member on producer groups and associations thereof States under an obligation to grant aid in the cotton sector (Official Journal 1982, to recognized producer groups in L 51, p. 1). In particular, the national court respect of investments made within the wishes to know whether the Member States framework of the objectives of those are obliged to grant the benefits provided provisions, in so far as such investments for under that measure once the applicable have been approved and included in the conditions are fulfilled and whether, in annual economic aid programme of the making a selection among the applications Member State? for aid, they may exclude certain groups by reason of their legal form. (b) Once an investment has been approved and included in a Member State's Andrianou-Gizinou, an agricultural com­ economic aid programme and has been pany incorporated under Greek law, is a carried out by an approved producer cotton producers' group recognized under group, may that Member State, on the Article 2 of the abovementioned regulation. basis of the same provisions in On 5 October 1984 it submitted an conjunction with the intent of the investment project consisting in the purchase aforementioned regulation, after a of a cotton harvester. The project was selection and to the detriment of a approved by the competent national auth­ group which is not organized on a orities, which included it in the general cooperative basis, grant such aid to investment programme forwarded to the another group which is organized on a Commission of the European Communities. cooperative basis? The Commission approved that programme by Decisions 83/106 of 7 March 1983 In the proceedings before the Court, written (Official Journal 1983, L 66, p. 18) and observations were submitted by the parties 85/412 of 23 July 1985 (Official Journal to the main proceedings and by the 1985, L 229, p. 19). Commission. The Commission and the Greek Government also appeared at the Since the applications for investment aid hearing. exceeded the amount provided for under the programme, the Greek authorities 2. As the Commission rightly points out, decided to make a selection among the the reference to Article 4 contained in the applications by giving preference to groups first question is the result of a misunder­ organized on a cooperative basis. standing. In fact only Article 5 is relevant to

the problem raised by the national court. bases its reference on the issue of the form According to that article, 'the Member taken by the groups among which the States shall grant to ... groups and associ­ selection was made, and by the Greek ations thereof constituted on the basis of Government itself, which referred to the Article 2, aid for investments: fact that Andrianou-Gizinou is a (a) necessary for: commercial undertaking run for profit in order to justify its refusal to grant the aid. It the implementation of the common is well known that cooperatives are distin­ rules ... [and] marketing; guished from other companies precisely (b) ... to be used by the group or associ­ inasmuch as they operate principally for the ations ... ; mutual benefit of their members. It is therefore necessary to examine Article 2 (c) which form part of programmes (1) (c) of Regulation No 389/82. It provides approved ... ' . that the Member States are to recognize Clearly, the essential question is to producer groups which 'have legal determine whether or not the phrase 'shall personality or sufficient legal capacity to grant' is obligatory in nature. The Greek exercise rights and be subject to obli­ Government argues that it is not. I take the gations ... ', which clearly shows that opposite view. When they make conduct account is not to be taken of the form in obligatory, Community provisions do not which the group is constituted. Conse­ qualify the verb which expressed the content quently, the Member States cannot deny of the obligation with an auxiliary verb certain groups the benefit of the scheme ('must', 'are required to') but use directly provided for in the regulation merely the present indicative. The EEC Treaty because they have been set up in a particular offers numerous examples of that technique, form. the greater part of which refer to the Member States (see Articles 5, 6, 11, 12, 14 Furthermore, such a difference in treatment (3) and (6), 15 (2), 16, 17 (2) and (3), 18, would be incompatible with the prohibition 23 (1), 27, 31 to 33, 35, 37 (1) and (2), 40, of discrimination which, under the second 50, 53, 64, 67, 68, 71, 72, 74, etc.). subparagraph of Article 40 (3) of the Treaty, must characterize the implemen­ 3. Let me now turn my attention to the tation of the common agricultural policy. It second question. According to the Greek is also contrary to the Court's case-law: see, Government, far from discriminating against in regard to the concept of a farmer prac­ producer groups by reason of their legal tising farming as his main occupation, the form the authorities applied objective judgment of 18 December 1986 in Case criteria. That argument is not convincing. It 312/85 Villa Banfi v Regione Toscana [1986] is contradicted by the national court, which ECR 4039, at paragraph 10.