C-226/87

Mr Presidents end to the incompatibility. By letter of 30 Members of the Court, September 1985 the time-limit was extended to 18 October, but it was only on 29 October that Greece replied to the Commission, giving an assurance that the 1. By an application received at the Court required amendments would be made Registry on 20 July 1987, the Commission rapidly. Since that assurance was not of the European Communities applied to the followed by any action, the Commission Court for a declaration that the Hellenic initiated the infringement proceedings on 8 Republic has failed to fulfil its obligations April 1986 by sending the Hellenic Republic under the Treaty of Rome. It is alleged that the usual formal notice and, several weeks it failed to take within the prescribed period later (26 May), a reminder. the measures necessary to implement Commission Decision 85/276/EEC of 24 April 1985 concerning the insurance in Greece of public property and loans granted by Greek State-owned banks (Official Journal L 152, p. 25). On 11 July 1986, Greece confirmed that the contested provision was to be amended and that a bill for that purpose was about to be submitted to Parliament. That undertaking The facts are as follows. Article 13 of Law was repeated both at a meeting at minis­ No 1256/82 of 28 to 31 May 1982, which terial level which took place in Athens on 28 amended Articles 31 (1) and 54 (1) of Law and 29 July 1986 and in a letter of 4 No 400/70 of 13 to 17 January 1970, November 1986 in which Greece replied to provides that: (a) all public property, a further reminder which the Commission including the assets of Greek public under­ had addressed to it on 13 October. The takings, may be insured only with public Commission took note of those assurances sector companies and (b) State-owned (1 December) and indicated that it was banks must recommend in writing to their prepared to suspend the infringement customers that they take out insurance with proceedings if the Greek Government companies owned and controlled by the addressed a circular 'to the bodies public banking sector. concerned* requiring 'State-owned banks and insurance companies to comply immediately with the provisions amending Law No 1256/82, pending formal approval The Commission considered that provision by Parliament of the amendments*. to be contrary to Article 90 (1) read in conjunction with Article 52, Article 53, the second paragraph of Article 5 and Article 3 (f) of the Treaty; on 30 May 1985 it notified the Greek Government of the adoption of Decision 85/276 and called However, no circular was issued. Conse­ upon it to inform the Commission within quently, on 17 February 1987 the two months of the measures taken to put an Commission delivered a reasoned opinion

calling upon Greece to adopt the necessary free competition or the establishment in measures within two months from the date Greece of insurance companies from other of its notification. The Greek Government Member States and, consequently, infringes did not reply and the Commission brought Article 3 (f), the second paragraph of the action now before the Court. Article 5, Article 52 and Article 53 of the Treaty. Finally, the measure adopted also appears to infringe the principle of propor­ tionality. 2. The defence of the defendant Member State is based on two arguments: (a) Decision 85/276 was not binding in nature, and (b) it was unlawful. 3. In my opinion, the arguments summarized above must be rejected. I should observe first of all that the lawfulness of Decision 85/276 cannot be contested in In regard to argument (a), Greece argues, these proceedings. In order to show that, it first, that the Commission has used Article is unnecessary to rule on the admissibility of 90 (3) of the Treaty for the first time as the an objection of the kind provided for in legal basis of a decision and, secondly, that Article 184 in the context of an action for the nature of that measure is not failure to fulfil obligations (for a complete clear — there is an influential school of picture of the academic writing and thought which regards such a decision as an case-law on this subject, see Kovar, opinion, albeit one which carries 'Contentieux de la légalité — L'exception 1 considerable 'moral weight (Pappalardo, d'illégalité', in Juńsclasseur de droit interna­ 'Régime de l'article 90 du traité CEE — Les tional, 1981, section 161 -C, part three, aspects juridiques', in 'L'entreprise publique paragraphs 19 to 25). It is sufficient to point et la concurrence, les articles 90 et 37 du out that the Court has held that such an traité CEE et leurs relations avec la objection may not be raised in regard to concurrence', Semaine de Bruges 1968, individual decisions except in the extreme Bruges 1969, p. 81). The fact that it was not case where a decision infringes a principle contested does not therefore imply an of a constitutional nature (judgment of 10 admission that it is valid and does not mean December 1969 in Joined Cases 6 and that it cannot be contested before the Court. 11/69 Commission v France [1969] ECR A different result would deprive the 523; judgment of 12 July 1973 in Case Member States of the greater protection 70/72 Commission v Federal Republic of which Article 169 accords them, at the Germany [1973] ECR 813; judgment of 12 pre-litigation and litigation stages, than the October 1978 in Case 156/77 Commissions 'summary' procedure under the combined Belgium [1978] ECR 1881 and the Opinions provisions of Articles 90 and 173. of Mr Advocate General Roemer in the first of those cases and of Mr Advocate General Mayras in the second).

According to Article 90 (3), 'the may be regarded as a measure fully binding Commission shall ensure the application of on the addressee. In particular, Greece's the provisions [concerning public under­ reference to the views of Professor takings] and shall. .. address appropriate Pappalardo is irrelevant. In the work cited, directives or decisions to Member States' Professor Pappalardo states that the power (my emphasis). Naturally the measure could conferred on the Commission must not be have been contested within the time-limit exaggerated because 'if the State involved laid down in Article 173. However, Greece does not comply with ... the decision, the allowed that period to expire without acting only solution is to have recourse to Article and it cannot conceivably remedy its inertia 169'. The parallel (not, indeed, a of 1985 two years later. The reason why particularly apt one) which he draws that is so is clear. The time-limit laid down between the kind of measure provided for in is intended to avoid Community measures Article 90 (3) and opinions must be being called in question ad infinitum. It is understood in that context. thus an application of the first and most important principle, that of legal certainty, underlying the system of remedies estab­ lished by the Treaty (see, in regard to decisions under the first subparagraph of Article 93 (2), the judgment of 12 October 1978, cited above, at paragraph 24). The defendant Member State's criticisms of the reasons on which the decision is based, in order to show that that decision is unlawful, are also without substance. The Commission gave detailed consideration to all the obstacles created by the contested provision both to competition from private 4. Having arrived at that conclusion, I shall insurers, in particular agencies, branches consider the Greek Government's arguments and subsidiaries of companies from other to the effect that the decision is unlawful Member States, and to the right of estab­ only for the sake of completeness. lishment. Article 13 of Law No 1256/82 in practice prevents those undertakings from insuring public property, in respect of which premiums equal to one quarter of the national insurance market are paid.