C-63/87
ECLI:EU:C:1988:106
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COMMISSION v GREECE
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 1 March 1988
My Lords, orities under cover of a letter from Commis sioner Andriessen dated 23 December 1985. The Commission seems to take that date as the date of notification. Since the letter was despatched apparently to Athens on the day before Christmas Eve, that is open to doubt. However, Greece takes no point on that The present proceedings are concerned with and on the facts of this case it is not the question whether Greece has failed to necessary for the Court to decide on what comply with Commission Decision precise date the Decision was notified to the 86 / 187 / EEC (Official Journal 1986, L 136, Greek authorities. p. 61 : the 'Decision'), the validity of which is in issue in Greece v Commission. I refer to my Opinion in that case (where I come to the conclusion that the Decision does not fall to be annulled) for full details of the aid scheme concerned. However, for the purposes of these proceedings, the Decision's validity is presumed by virtue of Greece's application in Case 57/86 was Article 185 of the Treaty which provides lodged with the Court on 26 February 1986 that 'actions brought before the Court of and its request for interim measures on 13 Justice shall not have suspensory effect'. March 1986, rejected by the Order of 30 The Decision must therefore be taken as April 1986. valid from the date of its adoption and enforceable against Greece upon notifi cation by virtue of Article 191. Its continuing validity is underlined by the fact that the President of the Court refused to suspend its operation by his Order of 30 April 1986 in Case 57/86 R [1986] ECR On 23 May 1986, the Commission sent a 1497. Even if the Court should strike it telex to the Greek authorities asking for down in its final judgment in Case 57/86, information within two weeks of the Greece would be in breach of its Treaty measures taken to comply with the obligations if it had failed to comply with Decision, in particular following the the Decision up until that date whatever it President's Order. No formal reply has ever did thereafter. been sent, although the Commission was unofficially aware of two decisions adopted by the Governor of the Bank of Greece in purported compliance with the Decision, namely Decision No 790 of 5 June 1986 which reduced the rebate rate to 5 % with The interest rebate system was introduced in effect from 9 June 1986 and Decision No April 1983. The Decision was taken on 30 936 of 29 January 1987, reducing the rate November 1985 and sent to the Greek auth from 5 to 3 % for the period 1 February to
OPINION OF SIR GORDON SLYNN — CASE 63/87
31 December 1987 inclusive and abolishing However, in paragraph 19 of the judgment the rebate with effect from 1 January 1988. in Case 213/85 the Court held that to specify a date by which the Commission had to be informed of compliance measures taken implied that the measures had to be taken by that date. On that basis, in the present proceedings it will be necessarily established that Greece did not comply with the Decision within the prescribed period. The Commission brings this application under Article 93 (2) for a declaration that Greece has failed to fulfil its Treaty obli gations by not complying with the Decision 'within the prescribed period'.
The Court's case-law seems to admit of two defences for failure to comply with Commission decisions in this field. The first is that the decision is unclear or ambiguous. But for the Court's judgment of 2 February In Case 70/72 Commission v Germany 1988 in Case 213/85 Commission v [1973] ECR 813, the Court dismissed the Netherlands [1988] ECR 281, I should have Commission's application for a declaration considered that the Decision should not that the Federal Republic had failed to reasonably be construed as prescribing a comply with a decision taken under Article time for compliance. Article 1 ordered the 93 (2) because the obligation imposed was Greek authorities to abolish the interest indeterminate. That case was distinguished rebates without specifying a deadline; in Case 52/83 Commission v France [1983] Article 2 required Greece to inform the ECR 3707 in which the Court held that the Commission of the measures taken to decision addressed to France imposed a comply with the Decision within one month clear obligation. The Commission relies on of notification. For the same reasons as I the French case but ambiguity is not pleaded give in my Opinion in Case 213/85, I by Greece, and I do not see how it could should have read the Decision as obliging successfully do so. the Greek authorities to take those measures 'with the required speed' as the Court put it in Case 173/73 Commission v Italy [1974] ECR 709 and to inform the Commission within a month of the measures taken by that time to implement the Decision (an obligation which has apparently not been performed although the Commission seeks The second defence is impossibility. The no declaration in that respect). At the relevant authority is Case 52/84 Commission hearing in the present proceedings, the v Belgium [1986] ECR 89 in which the Commission conceded that the Decision was Court said at paragraph 14 on p. 104: ambiguous on this point. There was, as I see '. . . the only defence left to the Belgian it, no good reason why the Commission did Government in opposing the Commission's not specify clearly that Greece was to take application for a declaration that it failed to the necessary measures within one month, if fulfil its Treaty obligations would be to that is what the Commission intended. plead that it was absolutely impossible for it
COMMISSION v GREECE
to implement the Decision properly .... exporters and withdrawal would have had The Decision demands the with exceptionally disastrous and unforeseen drawal ... of a capital holding ... effected consequences for those commitments and, by a public regional company; that demand by extension, to Greek economic, monetary is sufficiently precise to be complied with. and export policy. Since the rebate system The fact that, on account of the under was an integral part of an overall monetary taking's financial position, the Belgian auth system instituted in April 1983, it was not orities could not recover the sum paid does possible to abolish it without completely not constitute proof that implementation overhauling that system which would have was impossible, because the Commission's required a considerable amount of time for objective was to abolish the aid, and, as the evaluation. Belgian Government itself admits, that objective could be obtained by proceedings for winding up the company .. . '.
The Commission's reply is essentially that it was not impossible to comply with the Decision, even if difficult or inconvenient. The Governor's second decision shows that In this case, Greece clearly had to abolish it was possible to comply with the Decision. the rebate scheme within one month of noti fication of the contested Decision. Equally, I think it is clear that only the last of the three stages of the phasing-out of the rebate implemented by the two decisions of the As I see it, compliance in substance was Bank of Greece constitutes full compliance clearly possible; the Commission can rely on with the Decision. the Governor's second decision in support of that proposition.
Therefore the case hinges on whether it was absolutely impossible for Greece to comply The Commission says also that it was with the contested Decision. Impossibility possible not only to comply with the may be as to substance and / or as to time- Decision as to the substance but also within scale. In other words, a Member State may a month. plead that compliance was impossible either at all or within the 'prescribed period'.
The scheme at issue is self-contained, whether or not it forms part of a set of measures implementing Greek economic Greece asks the Court to recognize that the and monetary policy. Greece has not measures taken were appropriate in all the pleaded any technical reasons (for example, circumstances and therefore constituted relating to the way in which decisions of the proper compliance with the Decision. It Governor of the Bank of Greece are taken) argues that it was impossible to comply why the scheme could not have been 'within the deadline' because the rebates abolished within a month or any other were linked to medium- and long-term period. The scheme could in my view have commitments entered into by Greek been abolished sooner than it was and I am
OPINION OF SIR GORDON SLYNN —CASE 63/87
not satisfied by Greece that it could not Because this matter was not dealt with in have been abolished within one month or the Commission's pleadings, the Court put a within a reasonable period much shorter written question to the Commission, from than the period actually taken. The the answer to which it emerged that, whilst exporters' difficulties are those usually the Commission was broadly sympathetic to suffered by recipients of illegal aid and there the difficulties experienced in the Greek has been no argument that the Decision was economy, it took no specific position on the invalid because legitimate expectations were interest rebate scheme in issue in these frustrated (Case 52 / 83 , supra, at p. 3715). proceedings and Case 57/86, which were already pending before the Court when the discussions took place. The Greek under taking to phase out the scheme in the manner embodied in the two decisions of the Governor of the Bank of Greece was without prejudice to the outcome of these The Commission further contends that cases. Greece's arguments have already been rejected by the President in his order. That contention is incorrect. As to the monetary policy argument, the President held that the Greek Government had not made out a prima-facie case (paragraph 11); the harm to the exporters was recognized but The Decision was adopted on 30 November balanced against the interests of competitors 1985. Under Article 108 (3), the in other Member States (paragraph 12). Commission has adopted two decisions in Greece's favour, respectively dated 22 November 1985 (Official Journal 1985, L 373, p. 9) and 16 December 1986 (Official Journal 1986, L 357, p. 28), both of which authorize the gradual phasing-out of a Greek export aid system which, however, is Although the shortness of the period different from the interest rebate scheme prescribed for compliance (in the light of with which the Court is concerned. It the Court's decision in Case 213/85, cited appears, therefore, that no formal steps have above) may be said in future cases: (a) to been taken by the Commission to waive render an order to discontinue aid invalid, compliance with the Decision. In particular, or at any rate, (b) to provide a defence of it has not abrogated the Decision or impossibility, I do not consider that it has withdrawn these proceedings. been respectively (a) raised or (b) made out in these cases.
Can the same result arise merely because The only remaining issue, therefore, is general discussions concerning difficulties whether discussions between the have taken place? In paragraph 16 of the Commission and Greece subsequent to the judgment in Case 52/84 (supra) the Court Decision complained of, concerning said: ' ... the fact that the only defence Greece's balance of payments, led to the which a Member State to which a Decision waiving of the obligation to comply or to an has been addressed can raise in legal extension of the period for compliance. proceedings such as these is that implemen-
COMMISSION v GREECE
tation of the Decision is absolutely Treaty provisions, and in particular the impossible does not prevent that State — if, provisions on aid. However, in the present in giving effect to the Decision, it instance, none of the difficulties referred to encounters unforeseen or unforeseeable by the Belgian Government is of that difficulties or perceives consequences over nature, and that Government made no looked by the Commission — from proposals whatever to the Commission for submitting those problems for consideration the adoption of other suitable measures ..." by the Commission, together with proposals (loc. cit. p. 105). for suitable amendments. In such a case the Commission and the Member State As in Case 5/86 Commission v Belgium concerned must respect the principle (judgment of 9 April 1987, [1987] ECR underlying Article 5 of the Treaty, which 1773) the Commission is in my view not imposes a duty of genuine cooperation on acting contrary to what was said in Case the Member States and Community 52/84, or acting unreasonably in not institutions; accordingly, they must work accepting the difficulties put forward as a together in good faith with a view to over reason for not insisting on the Decision coming difficulties whilst fully observing the being carried out.
My conclusion therefore is that Greece has failed to comply with the Decision within the prescribed period . The Commission is entitled to a declaration in those terms and to its costs.