C-106/87
ECLI:EU:C:1988:363
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OPINION OF SIR GORDON SLYNN - JOINED CASES 106 TO 120/87
O P I N I O N O F ADVOCATE GENERAL SIR G O R D O N SLYNN delivered on 5 July 1988
My Lords, Commission was held not liable to the producers in damages. The Commission, in purported compliance with the 1983 annulment action, adopted Regulation N o 381/86 (Official Journal 1986, L 44, p. 10) which provided supplementary aid for marketing year 1983/84 only. That regu- lation was challenged by the producers and This reference under Article 177 from the the Hellenic Republic in the 1986 Athens court of first instance raises once annulment actions; it appears that the again the dispute concerning the coefficients present proceedings before the national fixed for production aid for tomato concen- courts were brought in parallel. trates in Greece. The previous cases in the series are Case 250/81 (Greek Canners v Commission [1982] ECR 3535), Case 192/83 (Greece v Commission [1985] ECR 2791, the '1983 annulment action'), Joined Cases 194 to 206/83 (Asteris and Others v Commission [1985] ECR 2815, the 'damages action') and the judgment of 26 April 1988 in Joined Cases 97, 99, 193 and 215/86 Judgment in the 1986 annulment actions (Asteris and Others and Hellenic Republic v was given after the national court made its Commission [1988] ECR 2181, the '1986 reference. However, the parties were able to annulment actions'). comment on its relevance to the present proceedings at the oral hearing.
I refer to those cases and particularly to my In that judgment, the Court dismissed the Opinion in the 1986 annulment actions, as applications in so far as they were brought well as to the report for the hearing in the under Article 173 to annul Regulation N o present case, for an account of the relevant 381/86 as inadmissible, the producers' Community legislation. The result of the application because the regulation could not 1983 annulment action and the damages be characterized as a decision of direct and action was that, despite the technical error individual concern to them and the Hellenic committed by the Commission in fixing the Republic's because it was not alleged that coefficients for Greece in respect of each the regulation was itself in any way marketing year from Greece's accession to unlawful but rather that the Commission the Community to marketing year 1986/87, was required to take other steps to comply only the regulation dealing with marketing with the judgment in the 1983 annulment year 1983/84 was annulled and the action. The Hellenic Republic had in fact
ASTERIS v GREECE
sent the Commission a letter of 17 April In the national proceedings, the producers 1986 which expressly invited the Com- seek the payment of the difference between mission to act, within the meaning of Article the aid they actually received in respect of 175 of the Treaty, by providing for marketing years 1981/82 to 1983/84 and supplementary aid in respect of marketing the amount they would have received if the years 1981/82, 1982/83, 1984/85, 1985/86 coefficients had been properly fixed. and 1986/87. The Commission's refusal so to act was the subject of the Hellenic Republic's application in Case 215/86 (and also of the producers' application in Case 193/86, which was declared inadmissible). The national court asks the following questions:
T o assess that application, the Court considered the obligations imposed on the Commission by the judgment in the 1983 '(1) Do the national courts of a Member annulment action. It did not address the State of the European Communities issue whether the judgment in the damages have jurisdiction to hear proceedings action might also impose obligations on the concerning claims by individuals Commission, as the Hellenic Republic had against the competent national auth- contended. The Court held that 'by virtue orities for the payment of differences of of the retroactive effect of judgments by aid due to them by the latter resulting which measures are annulled, the finding of from the incorrect application of illegality takes effect from the date on Community law and capable of being which the annulled measure entered into claimed back by the national authorities force' (paragraph 30). Therefore, in order from the competent Community organs to comply with the judgment as required by pursuant, in particular, to Regulation Article 176, the Commission was under a No 729/70 of the Council on the duty to eliminate from the regulations financing of the common agricultural governing marketing years after 1983/84 policy? provisions fixing the coefficient in the manner held illegal in the 1983 annulment action. However, that obligation did not extend to the regulations adopted before that governing the 1983/84 marketing year. If so:
In practical terms, the Court's ruling in the 1986 annulment actions means that the producers will in due course receive (2) Does the dismissal by the Court of supplementary aid in respect of marketing Justice of the European Communities of years 1984/85 to 1986/87 but that there is an action brought by the plaintiff presently no obligation on the Commission in these proceedings against the to make good the discrimination they Commission on the grounds set out in suffered in marketing years 1981/82 and the judgment of the Court of Justice of 1982/83. 19 September 1985 in Joined Cases 194
OPINION OF SIR GORDON SLYNN — JOINED CASES 106 TO 120/87
to 206/83 prevent the same plaintiff (c) Is the plaintiffs' claim for compensation from bringing an action against the in so far as it relates to the 1983/84 Greek State for compensation in respect marketing year, contrary to Commission of the loss of benefits which it would Regulation N o 381/86?' have received from the competent Greek authority had the latter claimed from the EAGGF pursuant to Regu- lation N o 729/70 of the Council? At the hearing before this Court, counsel for the producers stated that the claim in respect of marketing year 1983/84 would not be pursued, Regulation N o 381/86 having been adopted since they started their If not: action in the national court.
It was also explained that the Commission is (3) In respect of the payment by national not formally a third party to the national authorities of compensation to indi- proceedings. It has merely been officially vidual owners of processing under- informed of them and has standing to takings in receipt of aid pursuant to submit observations to the national court, a Council Regulation Nos 729/70 and facility which the Commission has not so far 516/77, inasmuch as it is intended to used. It therefore appears that there is no compensate for or redress a technical possibility as yet of the Commission being error of the competent Community ordered by the national court to pay any organs, amount to which it finds the producers entitled.
(a) is it sufficient for the national authority The national court's first two questions simply to inform the competent appear to assume that any supplementary Community organs in order for the payment 'resulting from the incorrect operation to be valid from the point of application of Community law' may be view of Community law (Article 92 of reclaimed by the national authorities from the EEC Treaty), or the European Agricultural Guidance and Guarantee Fund (the 'Fund') pursuant to Council Regulation No 729/70 on the financing of the common agricultural policy (Official Journal, English Special Edition 1970 I, p. 218, as amended). The Court (b) must the prior approval of the heard no argument on that point. In my Community organs be obtained in view, any dispute whether such payments accordance with the requirements of are to be borne by the Fund will have to be Article 93 of the EEC Treaty, as given the subject of further proceedings unless detailed effect by Council Regulation agreement is reached between the respective Nos 729/70 and 516/77? parties.
ASTERIS v GREECE
I therefore examine the national court's rules and remedies are left to the national questions on the understanding that the systems (see for example the line of cases on action is between the producers and the recovery of charges levied contrary to Greek State only, and solely concerns Community law, most recently the marketing years 1981/82 and 1982/83. judgments of 25 February 1988 in Joined Cases 331, 376 and 378/85 (Les Fils de Jules Bianco and Others v Directeur général des douanes et droits indirects [1988] ECR 1099) and of 24 March 1988 in Case 104/86 (Commission v Italy [1988] ECR 1799).
The basis of the action is not entirely clear. Reference is made to a provision of the Greek Constitution which was said to be to all intents and purposes identical with the Community law principle of non-discrimi- nation as particularly embodied in Article 40 (3) of the Treaty. The national court appears to understand the action as being The parties before the Court are both one for damages representing the difference agreed that the first question is posed in between the aid received and that allegedly relation to Greek national law alone. N o payable. The producers say that their claim question is raised as to whether there exists is for a declaration that the sums are due as any principle of Community law which a debt and not by way of damages. N o r is it enables a trader, whose government has clear whether it is an essential part of the failed to challenge in due time a regulation producers' case that the Hellenic Republic which is invalid (which the trader cannot failed to bring timely actions before this challenge before this Court because of lack Court for annulment of the Commission of a sufficient interest) and which in the regulations governing the two marketing result deprives the trader of monies which years in question. Had such actions been he should have received under a valid regu- brought, they would have succeeded as the lation, to recover them from his 1983 annulment action shows. However, if government, either by way of damages or as that fact is part of the producers' claim, the monies due under the applicable regulations claim would appear to be for breach of duty or otherwise. If such a question had been or non-contractual liability, which the posed, different considerations would arise. producers expressly disavow. Since it is agreed that it has not been put and there has been no argument about it, it is clearly inappropriate to go into it.
The action does not appear to be founded upon a breach of a directly effective provision of Community law 'creating indi- vidual rights which national courts must The question whether the State is protect' (Case 26/62 Van Gend en Loos v responsible under Greek law for financial Nederlandse Administratie der Belastingen loss caused by 'incorrect application of [1963] ECR 1, at p. 13) in a manner which Community law' or, more correctly, faithful must be effective although the procedural application of Commission regulations
OPINION OF SIR GORDON SLYNN — JOINED CASES 106 TO 120/87
containing a technical error, is one for the it to dismiss the producers' claim on the Greek courts. It therefore seems to me that, basis that they could claim damages from on that basis, the national court's first the Commission, nor could it hold that the question discloses no issue of interpretation regulations governing marketing years or validity of Community law for the Court 1981/82 and 1982/83 were not tainted by a to decide. technical error leading to discrimination against Greek producers vis-à-vis producers in the other Member States.
It seems to me to follow that the answer to the second question must be in the negative. I do not consider that this position is The national action is brought against a affected by paragraph 31 of the judgment in different defendant and on different the 1986 annulment actions, contrary to a grounds from the damages action in which suggestion made by the Commission at the the Court held that, although the coeffi- hearing in this case. Having held that the cients for 1983/84 were fixed unlawfully finding in the 1983 annulment action that (paragraph 20), which finding should be the coefficients for marketing year 1983/84 extended to the regulations fixing coeffi- were illegally fixed obliged the Commission cients for the 1981/82 and 1982/83 to remedy the position as regards that year marketing years (paragraph 19), the illegal and also subsequent years, the Court stated fixing 'was due to a technical error which, in paragraph 31 that 'that finding cannot although leading in objective terms to unfair apply to the marketing years covered by the treatment for Greek producers, cannot be regulations adopted before the 1983/84 regarded as constituting a serious breach of marketing year'. That seems to me to refer a superior rule of law or as manifest and to the Commission's obligation to remedy grave disregard by the Commission of the the position and does not affect or purport limits on its powers' (paragraph 23) and was to reverse the Court's statement in the therefore not sufficient to found the damages action, quoted above, that the Community's liability in damages under finding of a technical error in respect of the Article 215 (2) of the Treaty. 1983/84 marketing year should be extended also to the earlier two years.
It seems to me that the national court is not As I understand the third question, it pres- prevented by the damages action, or by any upposes that the producers will be successful other of the actions against the Commission in their action before the national court. It which the Court has decided in this also seems to assume that, in that event, the connection, from entertaining the pro- amounts which the State would have to pay ducers' claim against the State to the extent to the producers would constitute State aid allowed by national law. However, in so within the meaning of Article 92 of the doing, it must adopt as its own the Court's Treaty. The question then asks whether findings on matters of Community law. (a) it would be enough for the national Thus, for example, it would not be open to authorities to inform the Commission that
ASTERIS v GREECE
they had paid those amounts or (b) the to remedy the position within the basic national authorities must seek prior authori- regulation. Again, that seems to me a matter zation by virtue of Article 93. It then refers on which the Court cannot rule in this case. to Regulation N o 729/70 and to Regulation No 516/77 (Official Journal 1977, L 73, p. 1), the latter being at the relevant time the basic regulation on the common organ- ization of the market in products processed from fruit and vegetables (the 'basic regu- lation'). Article 17 of the basic regulation expressly provides that, save as otherwise provided therein, Articles 92 to 94 of the Treaty 'shall apply to the production of and trade in' the products covered by the common organ- ization of the market. It therefore seems that aid paid otherwise than pursuant to the The producers argue that aid paid pursuant express terms of the basic regulation or to the basic regulation and financed by the regulations made thereunder must be Fund pursuant to Regulation N o 729/70 is, notified in accordance with Article 93 (3) to by definition, Community aid, not national the Commission before it is granted. aid. Therefore Articles 92 and 93 of the Contrary to the implication of paragraph (a) Treaty do not apply. In the terms of the last of the national court's third question, there recital to the basic regulation, 'expenditure is no provision in Articles 92 to 94 for incurred by Member States as a result of national authorities merely to inform the obligations arising out of the application Community institutions of aids granted. of this regulation is financed by the Community in accordance with . . . Council Regulation (EEC) No 729/70'.
Does production aid, if it is not paid pursuant to the regulation, cease to be aid subject to Articles 92 to 94 solely because However, it may be doubtful whether paid by court order as the Commission money paid by the State in the event of the contends? It remains 'aid granted by a producers succeeding in their claim would Member State or through State resources' result from application of the basic regu- and the questions whether it distorts or lation and therefore be an allowable charge threatens to distort competition by on the Fund. These proceedings have arisen favouring certain undertakings or the precisely because the regulations governing production of certains goods and affects the two marketing years in question, which trade between Member States are for the were made pursuant to the basic regulation, Commission upon notification, though it is did not provide for the payment of the sums hard to see on what grounds the now claimed by the producers. The Commission could declare incompatible producers appear to be claiming in the with the common market aid which, but for national court that the fact that the failure a technical error on the Commission's part, so to provide was caused by a technical would have been paid under Commission error would bring steps taken by the State regulations.
OPINION OF SIR GORDON SLYNN — JOINED CASES 106 TO 120/87
If the Commission is submitting more If the producers succeed in their action, generally that Court awards can never there will clearly be complicated issues constitute State aid within Article 92, I do between the Greek State and the not accept its submission. It happens that a Commission as to the status and legality of Member State promises aid to an under- the money to be paid to the producers. The taking which, on examination by the Commission acknowledged at the hearing in Commission, is held incompatible with the the 1986 annulment actions that it had the common market. If the undertaking were to power to supplement the aid but had receive an equivalent sum by suing on the decided not to as a matter of policy. It is to promise, the application of Articles 92 to 94 be hoped that this long-drawn-out dispute would be subverted. A similar situation will now be resolved. would arise if a recipient undertaking sues the State for damages following a Commission decision ordering the State to Since the producers have declared that they recover illegal aid. It is therefore of prime will not pursue their claim in respect of importance for the proper operation of the marketing year 1983/84, paragraph (c) of Treaty rules on State aids that court awards the national court's third question does not fall within their reach in appropriate cases. requi-e an answer.
In my view, therefore, the national court's questions fall to be answered along the following lines. Its jurisdiction to entertain the producers' claim is a matter of national law, not Community law. Its jurisdiction is not precluded by anything in the Court's judgments in Case 192/83, Joined Cases 194 to 206/83 and Joined Cases 97, 99, 193 and 215/86, although it must abide by the findings of Community law made in those judgments. Production aid paid by a Member State to producers, in so far as it is not expenditure properly chargeable to the European Agricultural Guidance and Guarantee Fund, must be notified to the Commission in accordance with Article 93 of the Treaty.
The producers' costs are a matter for the national court. The Commission's costs are not recoverable.