C-127/87

COMMISSION v GREECE

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 24 March 1988 *

Mr President, Community law: the prohibition against Members of the Court, measures having equivalent effect to quanti­ tative restrictions on imports, the principles of the common commercial policy, agreements between the European Economic Community and certain A — Facts non-member countries and the rules of the common organization of the market in sheepmeat and goatmeat.

1. In the present action the Commission of the European Communities, the applicant, is seeking a declaration that the Hellenic Republic, the defendant, has failed to fulfil its obligations under the EEC Treaty by fixing maximum import prices for 4. After clarification of the issues in the oral sheepmeat and goatmeat and for live sheep procedure the applicant claims that the and goats. Court should:

6. The defendant considers that the measures which it has adopted are necessary to control currency movements. At the same 11. At the Court's request the applicant time they are also in the interests of submitted some information on prices to the consumers who are thereby protected from Court but explained at the same time that excessive import prices. Furthermore, it the intervention price was not applicable to argues, the prices fixed are not maximum sheepmeat in Greece because there were no prices but target prices which facilitate the corresponding national implementing task of the exchange control authorities. measures. Furthermore, the applicant stated that the basic price did not influence the market price.

7. However, in the oral procedure the 12. I will deal where necessary with any defendant conceded that in practice further statements of the parties in the next permission was not granted for imports section. costing more than the fixed prices.

B — Analysis 8. In the oral procedure the applicant commented generally on the relation between the prices fixed by the defendant 1. The prices fixed by the defendant and those fixed by the Community, but did not produce any concrete data.

18. In Greece there are no comparable maximum prices for domestic products. 15. In my view, these findings suffice to Since the maximum prices thus apply solely show the plausibility of the applicant's to imports, the defendant's rules contain a contention, founded on the wording of the prohibited measure with effects equivalent contested decision and the information to a quantitative restriction on imports furnished by the defendant at the hearing, within the meaning of Article 30 of the EEC that those prices are maximum prices. Treaty in so far as such rules are applicable to imports from other Member States of the Community. Since the defendant's decision is of general application and does not differentiate between imports from Member States and imports from non-member countries, it also affects imports from the 16. Thus the following analysis is based on other Member States of the Community. In the premiss that, as the applicant maintains, this context it is irrelevant that there are no the defendant fixed maximum prices for the significant imports of live sheep and goats imports concerned. or sheepmeat and goatmeat from the other Member States of the Community into Greece. According to the Court's case-law all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra- 2. Breach of Article 30 of the EEC Treaty Community trade are to be regarded as measures having an effect equivalent to quantitative restrictions. 5It is evident that a system fixing maximum prices which are considerably lower than those considered by the Community to be appropriate is at least potentially capable of hindering intra- 17. The Commission provided in Article 2 Community trade. Indeed, it may well be (3) (a) of Directive 70/50 4that measures precisely because of the level of the which 'lay down, for imported products maximum prices that there is no significant trade in the above products between Greece 4 — Commission Directive 70/50/EEC of 22 December 1969 based on the provisions of Article 33 (7), on the abolition and the rest of the Community. of measures wnich have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty (OJ, 5 — See judgment of 11 July 1974 in Case 8/74 Procureur du English Special Edition 1970 (I), p. 17). Roiv Dassonville [1974] ECR 837, at p. 852.

19. Since the measure in question is a 22. The applicant has asserted generally preventive control, the relevant provision is that the maximum import prices fixed by the Article 30 of the EEC Treaty, not Article defendant have had such an effect on price 106 (2) which is applicable when imports formation and has produced data on are in principle allowed and only the comparisons between the Greek market 'export' of the means of payment is prices and the permissible import prices for impeded. the latter part of 1987, in other words for a period which is not material to the present proceedings. However, the applicant has not produced any concrete data on the effect which the maximum prices fixed in 1984

it. It is not necessary to decide for the purposes of this action whether the latter constitutes a failure to fulfil obligations 21 . According to the Court's consistent under the Treaty, since the point was raised case-law, in sectors covered by a common for the first time during the oral procedure. organization of the market, and a fortiori when this organization is based on a common price system, Member States can no longer take action, through national provisions adopted unilaterally, affecting the machinery of price formation at the same production or marketing stage as that for which prices are governed by the commmon organization. 6 The regulation on the 23. According to the case-law of the common organization of the market in Court, 8once the Community has adopted, sheepmeat and goatmeat 7contains in Title I pursuant to Article 40 of the EEC Treaty, price rules which provide inter alia for a regulations establishing a common organ basic price to be fixed annually and an ization of the market in a given sector, intervention price. The fixing of maximum Member States are under an obligation to prices for imports may be regarded as action refrain from taking any measures which affecting the machinery of price formation might undermine or create exceptions to it. of the common organization of the market, However, in so far as the price rules under especially in view of the fact that the the common organization of the market for maximum import prices fixed by the sheepmeat and goatmeat are not applied at defendant are considerably lower than the all in Greece, the applicant should have common intervention or basic price. specified in what way those price rules are undermined by the fixing of maximum 6 — See judgment of 29 June 1978 in Case 154/77 Procureur du Roi v Dechmann [1978] ECR 1573, at p. 1584. 8 — See judgment of 7 February 1984 in Case 237/82 Jongeneel 7 — See Council Regulation (EEC) No 1837/80 of 27 June Kaas v Netherlands [1984] ECR 483, at p. 501 et seq.; 1980 on the common organization of the market in judgment of 4 February 1988 in Case 255/86 Commission v sheepmeat and goatmeat (OJ 1980, L 183, p. 3). Belgium [1988] ECR693.

prices for imports or how exceptions are 28. Furthermore, the Community has created from those common rules. No such concluded 'voluntary restraint agreements' specific details have been given by the on trade in sheep and goats with a number 9 applicant. of non-member countries. Under Article 228 (2) of the EEC Treaty such agreements are also binding on the Member States. In return for the non-member countries' 24. Thus the applicant has not demon­ limiting their exports to the Community, the strated conclusively that by fixing maximum Community undertakes to adopt all the import prices the defendant has interfered necessary measures to ensure that import with the price formation system of the licences for the products named in the common organization of the market in agreements originating in the country sheepmeat and goatmeat. concerned are issued automatically subject to the production of an export licence issued by the competent authority of the exporting State. Under Commission Regu­ 4. Breach of the external-trade rules 10 lations Nos 19/82 and 20/82 the import licence must be issued on the working day after it has been applied for, subject only to the presentation of an export licence issued 25. With regard to imports from by the exporting State. Having regard to non-member countries, the applicant those rules, there is no scope for Member considers the fixing of maximum import States unilaterally to impose additional prices by the defendant to be a national conditions on imports of the products commercial policy measure which is concerned. prohibited as being contrary to Article 113 of the EEC Treaty, Article 20 of the regu­ lation on the common organization of the market in sheepmeat and goatmeat, and a number of Community agreements with non-member countries on trade in sheepmeat and goatmeat and the 29. The defendant has made the issuing of implementing measures taken by the import licences dependent on compliance Commission in consequence of them. with the maximum import prices which it has fixed. Those maximum import prices are therefore contrary to the provisions of Commission Regulations Nos 19/82 and 26. For its part, the defendant argues that 20/82, to the abovementioned agreements the maximum import prices which it has with certain non-member countries and to fixed are exchange-control measures and do Article 20 of the regulation on the common not concern commercial policy. organization of the market in sheepmeat and goatmeat. Therefore, by fixing maximum import prices and thereby encroaching on the powers of the 27. Under Article 20 (2) of Council Regu­ Community with respect to the formation of lation (EEC) No 1837/80 the application of the common commercial policy the any quantitative restriction or measure defendant has failed to fulfil its obligations having equivalent effect is prohibited in trade with non-member countries unless 9 — For example with Bulgaria (OJ 1982, L 43), Hungary (OJ 1981, L 150), Poland (OJ 1981, L 137), Romania (OJ otherwise provided in the regulation or 1981, L 137), Czechoslovakia (OJ 1982, L 204). otherwise decided by the Council. 10 — OJ 1982; L 3, pp. 18 and 26 respectively.

(2) Order the Hellenic Republic to pay the costs.'

11 — See judgment of 16 December 1986 in Case 124/85 Commission v Hellenic Republic [1986] ECR 3935.