C-30/88

GREECE v COMMISSION

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 4 July 1989 *

Mr President, the Council of the European Communities, Members of the Court, notwithstanding the opposition of Greece, on 17 February 1986.

1. While the action in Case 204/86, As we all know, the action in Case 204/86 brought by the Hellenic Republic against was dismissed. The Court came to the the Council of the European Communities conclusion that none of the three for the annulment of transfer No 4/86 of submissions relied upon by the Greek appropriations amounting to ECU 10 mil­ Government, namely lack of powers of the lion from Chapter 100, Item 9631, to Council, misuse of powers by the Council Chapter 96, Item 9632, of the general and breach by the Community of an obli­ budget for 1986, was still pending before gation under international law, was well the Court, the Hellenic Republic brought founded. this action on 27 January 1988. The defendant in these proceedings is the Commission.

4. In these proceedings, Greece has contested the three Commission decisions of 17 November and 10 December 1987 2. In the meantime, on 27 September 1988 approving specific projects financed by the the Court gave judgment in that case and special aid for Turkey. This action had to dismissed the action against the Council. In be brought before judgment was given in view of the fact that the two cases are the first case (204/86) in order to comply closely connected, even though the with the time-limit set by the first paragraph defendant, the causa petendi and the petitum of Article 173 of the Treaty. are not the same, I can, for obvious reasons, confine myself to summarizing the facts.

(ii) infringement of essential procedural conduct of the Council and only to a requirements; negligible extent (following consultation) with that of the Commission. It is not surprising, therefore, that Greece had (iii) abuse of procedure; already relied upon it in its first action. Conversely, it is surprising that the Council's allegedly unlawful conduct — (iv) the Commission's lack of powers in non-implementation — was not relied upon adopting the contested measure. by the Greek Government at the time when the first specific projects were approved in 1981 (see paragraph 16 infra). 5. Having given a brief outline of the back­ ground to the case, I now turn to the arguments put forward by the Greek 7. In its aforesaid judgment the Court did Government, although I shall not deal with not expressly state its views on that point. In them in the same order; for further details I that regard, however, there is in my view a would refer to the Report for the Hearing. serious flaw in the reasoning of those who, relying on the premise that if the Court had considered the argument valid it would have 6. The first argument, which on closer accepted it at the time, now contend that inspection does not concern the conduct of the argument itself is invalid. the Commission itself, relates to the alleged infringement by the Council of Article 2 of Intergovernmental Agreement No 64/737/EEC (Journal officiel L 217, The validity of the argument must, in my 29.12.1964) on the measures to be adopted view, be considered in the light of criteria and the procedures to be followed for the other than mere silence or a mere omission application of the Association Agreement on the part of the Court. between the Community and Turkey. According to the Greek Government, that Agreement has been infringed inasmuch as, contrary to Articles 7 and 22 thereof, the 8. In that regard, I find in the first place Council of the European Communities did that in the Opinion of Mr Advocate General not give its unanimous assent to the Mancini in Case 204/86 the problem is implementation of the decision of the tackled and resolved in a manner unfa­ EEC-Turkey Association Council, with the vourable to the Greek Government's result that the subsequent implementation of argument (p. 29 of the roneod version of budget expenditure on an item vitiated by the Italian text). In the view of my prede­ illegality is in its turn null and void. In cessor, the Council's argument is correct, in substance, the Greek Government maintains the sense that 'if read attentively, Article that the Council of the European 2(1) of Agreement No 64/737/EEC Communities should have transposed into requires the transposition into Community Community law by means of a specific act law only of decisions which could not the measure adopted by the EEC-Turkey otherwise be applied'. Association Council.

In that regard, although it has advanced The answer given by the Council and three separate submissions (infringement of endorsed by the Commission is, in my view, essential procedural requirements, abuse of exhaustive and persuasive. Although it is procedure and the Commission's lack of true that the Council has never expressly powers), the Greek Government alleges in determined the criteria to be applied for the substance that the Commission followed an purpose of interpreting the provision under unlawful procedure with regard to the consideration, the practice which it has approval of the three projects, in order to followed and which consists in adopting obviate the possible opposition of 'certain Community measures for the application of Member States' (p. 7 of the application). decisions of the Association's governing Even more explicitly, Greece implies that bodies only where such measures are legally the Commission deliberately set up an arti­ warranted, is justified in my view. ficial legal structure (also) for the purpose Admittedly, the provision in question is not of replacing the unanimity rule, which absolutely clear and could also be inter­ Greece maintains is applicable, with the preted in the manner suggested by the qualified majority rule, or even arrogated to Greek Government. However, every itself the power to take decisions without provision must be interpreted in the context consulting the Member States. of the system to which it belongs and, in that light, I do not see any reason, still less any need, for swelling to no purpose the Community's already abundant body of That is the background, the political impli­ legislation by requiring any and every cations of which are self-evident, to the measure adopted by the Association's legal discussion which raises, amongst other governing bodies to be formally transposed, things, the complex problem of distin­ even where its internal effect in Community guishing between the Commission's law is inherent in the measure itself or is implementing powers under Article 145 of achieved by other means. the EEC Treaty and its powers to implement the budget under Article 205.

Government's legal argument is persuasive, the usual practice of consulting and whilst the Commission's position is open to informing States which have signed an criticism. That is so particularly since, in accession agreement that has not yet order to justify a standpoint which is entered into force, Greece was kept frankly indefensible because it fails to informed of decisions which had been respect a Member State's fundamental right adopted by the Community institutions after to the observance of those procedural rules the signature of the Act of Accession and which it had previously accepted, and not which were to form an integral part of the other rules, the Commission has formulated 'acquis communautaire'.

Whatever the merits may be, from the point of view of the general policy pursued in relations with Turkey, of the aims inherent in the Commission's conduct, the Court's task is to safeguard the prin ciples of a Community governed by the rule of law, in which, in particular, rules Paragraph 2 of Decision No 2/80 of the previously laid down and ascertained must Association Council specified that, in be complied with and may not be amended appraising specific projects, the Commission unilaterally by one of the parties. would abide by the criteria laid down by the 'Community delegation'.

That was clearly the unequivocally runs counter to the interpre ad hoc procedure, which was characterized tation followed by the Commission. by the fact that only the projects forwarded by the Commission and the EIB and unani mously passed by the ad hoc working party established within the Council were accepted. It is also interesting to note in that 16. The first period falls in 1980. In that regard that some of the first specific projects year, Greece had not yet joined the carried out by Turkey and financed by

GREECE v COMMISSION

between the EEC and Turkey were 'The Council and the Commission (emphasis frozen — had been approved in 1981 under added) state that this regulation may in no the ad hoc procedure and therefore unani­ way be regarded as a precedent for mously (which means with the assent of implementing financial protocols other than Greece). those covered by this regulation.

The procedure for implementing such other protocols will be adopted later in accordance with the merits of each It is clear from that historical survey that particular case.' when Greece agreed to the financial side of the aid to Turkey it was aware that the Council would have applied the unanimity rule with regard to its actual implemen­ 18. If we examine the consequences of that tation. It is equally clear that once it had statement, it seems to me to contain two joined the Community Greece made no incontrovertible factors: attempt, until relations with Turkey were frozen, to veto the implementation of the financial aid. That is not in itself significant (1) the new procedure (qualified majority) but serves to complete the picture and to is not applicable to financial cast doubt even on the political necessity for cooperation with Turkey; the Commission's conduct.

it seems quite clear to me that the previous continues to take effect. With regard to the procedure remains applicable to Turkey as Mediterranean countries expressly referred long as the Council has not decided to in Regulation No 3973/86, it was the otherwise. clear intention of the Council to discontinue the application of the ad hoc procedure to them. As for Turkey, the Council's intention was undoubtedly not to apply the new procedure to it. Since no decision was taken to discontinue the application of the ad hoc

21. That approach makes it superfluous to Giuffrè Editore, 1970, p. 134): 'in order to carry out the other investigation, with its reach a legally tenable conclusion by way of ill-defined scope and uncertain result, which analogy it is necessary to show that a detail consists in ascertaining whether the in respect of which there are no legal rules aforesaid declaration entered in the Minutes exhibits in common with a detail for which of the Council meeting of 30 June 1980 at rules exist those features on which legal the time of the Association Council's rules are based'. In this case there is no adoption of Decision No 2/80 contains a 'lacuna' since exhaustive rules have been reference 'substantively' or 'formally' incor adopted by the legislature. porating the ad hoc procedure.

GREECE v COMMISSION

merely . . . consult its members and take of serious doubts as to the correctness of advantage of their experience in dealing the procedure which it intended (at the with Mediterranean development projects. time) to apply. It follows from the opinion set out in Document No 8006/87 of 29 July 1987 of the General Secretariat of the Council, submitted by the Greek 23. Even without resorting to the highest Government, that when the matter came principles (of a Community governed by the before the Committee of Permanent Repre rule of law), it does not seem to me that sentatives the Council's Legal Department such a casual approach can reasonably be had already taken the view that the inter accepted, let alone endorsed by the Court, pretation based on the intention of the particularly if the importance is con parties entailed in this case the application sidered — in political terms as well — of the of the ad hoc procedure. transition from the unanimity criterion, which alone had been accepted by Greece, to the majority criterion, whose applicability 24. This brings me to the conclusion that to aid for Turkey had been ruled out by all the arguments put forward by the Greek the Member States and the Commission. So Government must be accepted.

procedure as . . . experts. implementation of the budget within the meaning of Article 205 of the Treaty, the Commission's powers are exclusive; conse quently, even if all other factors are taken It is quite sufficient to point out that, if the into account, the Commission itself was in Commission had resorted to the 1979 ad hoc any event entitled to refrain from applying procedure, it would also have benefited procedures imposing conditions on the from the experience of government experts, exercise of those powers.

OPINION OF MR TESAURO —CASE 30/88

26. On closer inspection, however, there in response to allegations of illegality made are procedural reasons which prevent the by individuals and the Member States but Court from tackling such a stimulating and not resulting in proceedings under Article important problem here. To begin with, the 173 or objections under Article 184, three contested decisions contain no precludes the Court from adjudicating on reference to Article 205 of the Treaty. On that point. The Court has consistently held the contrary, reference was expressly made, that, according to the principle of legality, albeit in the aforesaid context of its measures must be deemed to be fully application by way of analogy, to the effective until they have been declared procedure referred to in Regulation No unlawful (see, most recently, the judgment 3973/86 which, in any event, involved of 7 June 1988 in Case 63/87 Commission v approval by a body external to the Greece [1988] ECR 2875). Commission.

As regards the ad precluded. Generally speaking, I consider hoc procedure in particular, its continuation that the exclusive nature of the powers in force is disputed even after the adoption conferred on the Commission to implement of Regulation No 3973/86, but not its the budget is not in abstract terms incom legality in the light of Article 205. patible with certain rules and/or procedures for the approval of decisions involving expenditure that may already be covered by a broader item in the budget, all the more

GREECE v COMMISSION

Arguably, Article time when an item of expenditure relating 145 of the Treaty (and Article 155 before thereto is entered in the budget, fall within it), as embodied in the Single European Act, the exclusive power to implement the is also set in that context, although it does budget conferred on the Commission by not reflect all the implications and ramifi Article 205. cations thereof. Articles 145 and 205 co-exist harmoniously within the system established by the Treaty and with the division of powers between the Council and the Commission, a division which clearly In my view, such a shift in powers, ranging distinguishes a decision-making process that from the outer limit of the Council's gives rise to expenditure, whether or not exclusive powers (which may be exercised such expenditure is included in a broader even without a Commission proposal being item already entered in the budget, from required) to the outer limit of the one that leads subsequently, from the Commission's exclusive powers relating to commitment of expenditure until actual the budget (which may be exercised without entry in the accounts, to the 'implemen any possibility of interference by the tation' of the decision in terms of expen Council), is neither justified nor desirable.

As 29. In my view, that conclusion applies with for the specific case of Turkey, however, particular force in a case such as this, in that regulation is not applicable for the which the Council, without prejudice to the reasons referred to earlier and only the ad