C-35/88
ECLI:EU:C:1990:223
- Súd
- Súdny dvor Európskej únie
- IČS
- 61988CC0035
- Zdroj
- eur-lex.europa.eu ↗
COMMISSION v GREECE
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 23 M a y 1990*
Mr President, Commission should in those circumstances Members of the Court, have implemented the entire procedure under Article 93(2) rather than bringing an action on the basis of Article 169 of the Treaty. The Hellenic Republic relies in 1. The action brought by the Commission particular on the judgment in Case 290/83 against the Hellenic Republic, with which Commission v France [1985] ECR 439, in this Opinion will deal, seeks a declaration which the Court held that: by the Court that, by intervening on the market in feed grain, and in particular by giving instructions to the Central Office for the Management of National Products 'The procedure laid down in Article 93(2) (hereinafter referred to as 'Kydep') provides all the parties concerned with guar- regarding the purchase and sale of feed antees which are specifically adapted to the grain at prices and on conditions special problems created by State aid with determined by the Greek Government, by regard to competition in the common covering from State resources the deficit market and which go much further than arising from those transactions and by facili- those provided in the preliminary procedure tating preferential financing by the Agri- laid down in Article 169 of the Treaty in cultural Bank of Greece of Kydep's oper- which only the Commission and the ations on the market in feed grain, the Member State concerned participate.' Hellenic Republic has failed to fulfil its obli- gations under Regulation (EEC) No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals 1and the regulations giving effect 3. The Commission complains that the to it, and also under Articles 5 and 93 of the Greek Government failed to raise the EEC Treaty. preliminary objection of inadmissibility in the course of the pre-litigation procedure. However, that observation — although correct — seems immaterial, since the Admissibility question of the admissibility of an application must be appraised by reference to the action itself, and that action does not come into being until the application has 2. The Hellenic Republic pleads that the been lodged. application is inadmissible, on the ground that its main purpose is to obtain a declaration that the Greek authorities have been granting to stock breeders in Greece a 4. Having said that, however, I do not State aid incompatible with the common propose that the Court should declare the market. According to the defendant the Commission's application to be inadmissible. Contrary to the assertions of the Hellenic * Original language: French. Republic, the main purpose of the 1 — OJ L 281, 1.11.1975, p. 1. The regulation has since been amended on numerous occasions. application is to obtain a declaration that
I-3137
OPINION OF MR MISCHO — CASE C-35/88
the Hellenic Republic has infringed the 7. It is clear from that extract that, provisions of Regulation No 2727/75 on the wherever the Commission bases its action common organization of the market in on a provision other than Article 92, it may cereals by intervening, through Kydep, on avail itself of Article 169. That is precisely that market in a manner not envisaged by the case here, since, apart from the separate the regulation. That infringement, if such it complaint regarding the failure to notify is, can be established only in the context of financial measures under Article 93(3) and the procedure provided by Article 169 and the alleged infringement of Article 5 of is independent of the question whether or the Treaty, the action brought by the not the Hellenic Republic absorbed any Commission seeks a declaration that the deficits arising from the intervention in defendant has infringed the provisions of question. Regulation (EEC) No 2727/75. In the conclusions in the Commission's application, Article 92 of the Treaty is not mentioned.
5. Conversely, if the main head of complaint is justified — that is to say, if the 8. The circumstances of the present case are Greek authorities were not entitled to order therefore very similar to those under Kydep to purchase and sell feed grain at consideration in the judgment in Case prices and on terms laid down by Kydep 72/79 Commissions Italy [1980] ECR 1411, itself — it follows a fortiori that they were in which the Court held that: not entitled to charge to the State budget the deficits arising from those operations. The second head of complaint is therefore ancillary to the first. In that case, there is no 'The Council is entitled to lay down, within need to have recourse to Article 92 in order the context of the regulations establishing to show that the complaint is well founded. the common organization of the markets in agricultural products, provisions prohibiting wholly or partially certain forms of national aids for the production or marketing of the products in question and that an infringement of such a prohibition may be 6. It should also be noted that the Court, in dealt with within the specific framework of its abovementioned judgment of 30 January such an organization. In fact the existence 1985, further held as follows: of the special procedure laid down in Article 93 of the Treaty for appraising the compati- bility of national systems of aid with the common market cannot affect the necessity for Member States to observe the rules on 'Accordingly, although the existence of that the common organization of the market.' specific procedure in no way prevents the compatibility of an aid scheme in relation to Community rules other than those contained in Article 92 from being assessed 9. Admittedly, Article 22 of Regulation No under the procedure provided for in Article 2727/75 states that, save as otherwise 169, the Commission must... use the provided therein, Articles 92 to 94 of the procedure laid down in Article 93(2) if it Treaty must apply to the production of and wishes to establish that that scheme, as aid, trade in the products covered by the is incompatible with the common market.' common organization of the market in
I-3138
COMMISSION v GREECE
cereals; however, the Commission does not terms laid down by the Greek rely on that reference in this case. Government; Furthermore, although the Commission cites Article 93, it does so only in so far as Article 93(3) requires Member States to inform the Commission of any plans to (ii) covered the deficit arising from those grant or alter aid (see p. 3 of the transactions from State funds; application). Moreover, the guarantees afforded by the special procedure created by Article 93(2) come into operation only when the substance of the aid is at issue rather (iii) promoted the preferential financing by than the purely procedural obligation to the Agricultural Bank of Greece of notify it. All interested parties, whoever they Kydep's operations on the market in may be, must have the opportunity of feed grain; expressing their views on the substance, whereas the procedural obligation cannot in any circumstances be affected by the obser- vations they may make. (iv) failed to cooperate in the Commission's investigations;
10. Lastly, I find equally unacceptable the defendant's argument that the essential purpose of the action is, in the last analysis, (v) failed to notify to the Commission the to obtain a declaration that Articles 92 and financial facilities which it was granting 93 of the Treaty have been infringed, since to Kydep. none of the breaches of Regulation No 2727/75 alleged by the Commission has been substantiated. Once again, this is a substantive argument which can have no I — 13. As far as the first of the those bearing on the admissibility of the complaints is concerned, it may be noted application. that the Court, in its judgment in Case C-281/87 Commission vGreece [1989] ECR 4015, had occasion to express its view on a 11. My conclusion, therefore, is that the circular which the Greek Minister for Agri- Commission was fully entitled to use the culture had sent Kydep on 7 July 1982, procedure under Article 169 and that its requesting Kydep to purchase, at prices laid application is admissible. down by the national administrative auth- orities, all consignments of inferior-quality durum wheat held by producers or Substance threshing undertakings.
12. I propose to consider in turn the five complaints made by the Commission, 14. The Court held at paragraph 17 of the namely that the Greek authorities: judgment:
(i) intervened on the market in feed grain, in particular by instructing Kydep to 'the circular letter in issue is contrary to the buy and sell feed grain at prices and on provisions governing the common organ-
I-3139
OPINION OF MR MISCHO — CASE C-35/88
ization of the market in cereals inasmuch as antees a single selling price for animal it constitutes a national intervention feed and regular supplies to all stock measure in a field where the Community breeders in the country . . . ' rules are exhaustive'.
17. In my opinion, the purchases referred to in that document cannot be intervention 15. With regard to the Greek authorities' purchases under the Community rules, since intervention on the market in feed grain at the Community bears the cost of that issue here, the Commission has supplied a scheme and it would therefore be great deal of evidence, of which I propose unnecessary for them to be financed by to point out only the most cogent items. means of loans guaranteed by the Greek State. Indeed, the defendant admitted at the hearing that it had, after accession, considered it essential to support the national stock-breeding sector. 16. First, the Commission has produced the Minutes of a meeting held on 7 November 1980 and attended by (amongst others) the Minister for the Coordination of EEC 18. Further details are to be found in a Issues, the Minister for Agriculture and the series of decisions by various Greek govern- Minister for Trade. It was decided at that mental bodies, which the defendant finally meeting that Kydep should continue to produced at the Court's behest. They reveal handle stocks of animal feed after 1 January the operation, within the Greek adminis- 1981, on which date the accession of Greece tration, of a finance committee which laid became definitive. Kydep's exercise of that down the prices at which Kydep was function involves the following permitted to sell the stocks of feed grain arrangements : which it had acquired.
19. The Finance Committee adopted Decision No 1533 of 15 April 1981 under '(i) Buying-in by Kydep of surpluses of which : feed grain at the appointed intervention price, using loans guaranteed by the Greek State. Confidential aid to Kydep from public funds in order to cover the 'The Finance Committee . . . decides unan- cost of handling stocks. imously . . . [that] the selling price for maize from 1 January 1981 shall be set at DR 10 per kg, including Kydep's fees of DR 1.8 per kg; the Ministry of Trade shall be responsible for the implementation of this (ii) Importation by Kydep of additional decision.' quantities of animal feed and subsequent sale thereof at the inter- vention price. Confidential use of public funds to cover the difference 20. By Decision No 1733 'on the fixing of between the cost price and the inter- the selling price for feed grain (maize, vention price, and handling costs. This barley, etc.)' the Finance Committee laid method of handling animal feed guar- down:
I-3140
COMMISSION v GREECE
'a single price, namely DR 10 per kg, for laying down Kydep's selling prices. The the sale through Kydep of feed grain decisions in question are Joint Decisions (maize, barley, etc.) to cattle and poultry Nos 205333 and 205334 of the Ministers breeders and animal feed industries shall be for Finance, Agriculture and Trade, and sold exclusively for the purpose of meeting Decision No 206586 of the Minister for the requirements in animal feed at a Agriculture. national level. The price mentioned above relates both to the 1980 stocks . . . and to the feed grain purchased, or to be purchased on or after 1 January 1981 by 24. Decision No 205333 of 16 July 1982 Kydep, either on the domestic market provides that: pursuant to the support measures for the prices of cereals harvested in 1981, in accordance with Decision No 1573/81 of the Monetary Committee, or on the foreign 'A single price of DR 13 per kg shall be laid markets'. down for the sale of feed grain (wheat, barley, etc.) sold through Kydep to Greek cattle and poultry breeders in general, and to the animal feed industry, who are to sell their products solely for the purpose of 21. Decision No 1761 of the Finance meeting national animal feed requirements'. Committee, the content of which is substan- tially the same as that of Decision No 1733, replaced the latter on 24 September 1981. 25. Decision No 205334 of 22 July 1982 fixes :
22. It must be emphasized that both decisions provide expressly that 'the price 'the price for the sale of feed grain (maize, laid down shall relate both to the 1980 barley, etc.) to industries producing stocks . . . and to the feed grain purchased, or compound feedingstuffs for animals, where to he purchased on or after 1 January 1981 by such compound feedingstuffs are exported, Kydep . . . pursuant to the support measures at a level equal to the threshold price for the prices of cereals harvested in 1981'. charged in each specific instance plus the That proves that, contrary to the assertions relevant costs of handling, transportation, of the Greek Government, its administrative etc. incurred by Kydep'. bodies did not confine themselves to super- vising the disposal of the remainder of the 1980 harvest but continued to intervene after completing that task. The document also suggests that Kydep was doubtless not 26. Lastly, Decision No 206586 of the at liberty to lay down its purchase prices at Minister for Agriculture of 30 September will, either. 1982 provides that:
'stocks of up to 300 000 tonnes of maize 23. The defendant also produced other from the national harvest of 1982 shall be decisions by Greek Government bodies sold through Kydep to Greek cattle and
I-3141
OPINION OF MR MISCHO — CASE C-35/88
poultry breeders (whether or not affiliated to Decision No 205333, mentioned above, a cooperative2)at the reduced price of permits : DR 12.30 per kg.'
'the absorption by the current expenditure 27. Moreover, the letter of 29 July 1982 account of the State budget of the (reference No 205336) sent to Kydep by the difference between the cost price, which Ministry of Agriculture lays down the quan- shall include the cost of purchase, tities of feed grain to be sold per day and management, transportation, etc. by Kydep per animal for the various species and and the selling price of DR 13 per kg'. categories of animal, and the proportions to be observed between the various types of cereal (maize, barley and wheat). Lastly, Decision No 206586, mentioned above, provides that:
28. It is thus established that the Greek authorities, acting through Kydep, 'The financial liability resulting from the intervened in 1981 and 1982 on the market aforesaid additional sales shall be charged to in feed grain in the manner described by the the current-expenditure account of the State Commission. budget.'
II — 29. It is also clear from the documents 31. Similarly, the Commission has produced before the Court that the Greek State in Annex 4 to its reply Report No 189 of 14 covered the deficit incurred by Kydep as a February 1984, prepared by the committee result of selling cereals at prices which did set up by Joint Decision No 2028 of 17 not always enable it to recoup the purchase March 1981 of the Ministers for Trade and price and its own costs. Agriculture, which lays down 'the amount ultimately absorbed by the State for 1982 in respect of the management of feed grain (barley, maize and wheat) by Kydep'. The defendant does indeed contend that the 30. Thus the aforesaid Decisions Nos 1733 committee was created solely to dispose of and 1761 authorize in identical terms: the stocks held before the accession of Greece to the Communities, but the quan- tities and sums referred to in the report rule out the possibility that only those stocks 'the absorption of the difference between were involved. the cost price, resulting from the purchase, storage and transportation of the goods by Kydep, and the selling price of DR 10 per kg, by the loan made by the Bank of Greece 32. It is in my view legitimate to conclude to the Agricultural Bank of Greece, borne in the light of those documents that the by the State budget, and to be charged to Greek Government absorbed the differences the current-expenditure account for 1982'. between cost price and selling price in Kydep's transactions in 1981 and 1982 2 — The emphasis in paragraphs 24, 25, and 26 is mine. involving maize and barley.
I-3142
COMMISSION v GREECE
III — 33. The documents before the Court 36. Furthermore, the abovementioned also clearly substantiate the third complaint Decision No 206586 of the Minister for made by the Commission, namely that the Agriculture, dated 30 September 1982, Greek authorities promoted the preferential provides on the one hand that the Agri- financing by the Agricultural Bank of cultural Bank of Greece is to grant special Greece of Kydep's operations on the feed loans to purchasers of feed grain and on the grain market. other hand that the State is to allocate to the Agricultural Bank of Greece the necessary credits to grant those State- guaranteed loans, which will enable Kydep 34. A letter sent on 2 April 1982 by the to carry out the sale in question. However, Finance Committee to the Bank of Greece the fact that Kydep was thus able to obtain includes an excerpt from the report of the credits of which repayment was guaranteed 357th meeting of that committee, in the by the State and the interest rate was set by course of which the committee: a body dependent on the State proves beyond dispute that the Greek State did, as the Commission's application recites, promote the preferential financing of the operations of that union of cooperatives. 'permits the Agricultural Bank of Greece to receive financing from the Bank of Greece of an amount not exceeding DR 10 000 000 000 for the purpose of granting a loan to Kydep for the purchase of animal feed on foreign markets and for 37. However, I do not believe that the its resale to cattle and poultry breeders and Commission has made out its case that to animal-feed industries with a view to Kydep benefited from an interest rate lower meeting national requirements in 1982'. than the market rate or that it did not have to repay part of the loans.
That decision lays down the interest rate for the loan to be granted by the Agricultural Bank to Kydep and the interest rate for the loan by the Bank of Greece to the Agri- 38. So far I have referred only to cultural Bank. documents emanating from the Greek auth- orities. In my view they have substantiated the first three complaints as far as 1981 and 1982 are concerned. During the oral 35. The committee 'orders 3 Kydep to sell procedure, however, the Commission stated the animal feed financed as described above that its action covered the entire period only against payment in cash' and gives the preceding the date on which the letter of Minister for Finance its approval for the formal notice was sent. There were, granting of a guarantee by the Greek State however, two formal notices. The notice to the Agricultural Bank of Greece covering extending the scope of the complaints the repayment of capital, interest and other against the Hellenic Republic to all types of charges levied on that loan to Kydep feed grain is dated 23 December 1985. It in respect of the full amount of therefore remains to be determined whether DR 10 000 000 000. the Commission succeeded in proving that the infringements persisted during the 3 — Emphasized in the original. period from 1983 to 1985 inclusive.
I-3143
OPINION OF MR MISCHO —CASE C-35/88
39. In that connection it should be recalled ' . . . It is common knowledge that this that the Commission attached to its animal feed is subject to management application documents which allude to the which, although ostensibly provided on official decisions mentioned above, the behalf of the producers, is in reality content of which has now been confirmed management on behalf of the State' (bottom by the production of the texts themselves. of p. 13 of the report). The documents in question are, first, the report of Kydep's legal department dated 1 January 1985 and, secondly, a report by the directorate-general of that legal department, 40. The report further explains that: submitted at the 36th general meeting on 12 December 1986. I prefer not to rely on the report of the legal department, the evidentiary value of which is debatable, 'As part of its efforts to ensure the devel- because it is a purely internal document. On opment of national livestock breeding, the the other hand, it seems to me that the government intervenes in the pricing of report of the directorate-general may legit- animal feed by subsidizing part of the cost imately be cited, being a document which by of those products... A committee nature is designed to be made public, at consisting of civil servants from the finance least amongst the many cooperatives departments of the Ministry of Agriculture embraced by Kydep. Indeed, a member of and Kydep then determines the parliament quoted excerpts from it during management deficit, which is covered by the the sitting of the Greek Parliament on 6 Ministry of Agriculture under the relevant March 1987 (see Annex II to the reply). heading in its budget' (p. 4, paragraph 2). That report, dated — as was noted above— 12 December 1986, describes as a continuing practice the following oper- ations: 41. In my opinion, therefore, it may properly be concluded that the practices in question continued throughout 1983, 1984 and 1985.
'The stocks of barley collected every year are taken over by the "management board for animal feed", which forms a special 42. It now remains to consider whether, by management unit under the aegis of the pursuing those practices, the Hellenic Ministry of Agriculture; the latter also Republic failed to fulfil its obligations under covers the difference between the cost price Regulation No 2727/75 on the common to Kydep and the selling price . . . ' (bottom organization of the market in cereals. of p. 9 of the report).
43. Pursuant to Article 3 of Regulation No 2727/75, as amended by Council Regu- lation (EEC) No 1870/80 of 15 July 1980 ' . . . Like barley, maize is the subject of (Official Journal 1980 L 184, p. 1), the special management, the purchase prices Community fixes every year a common payable on collection and the selling prices single intervention price for common wheat, to stock breeders being set by the rye, barley and maize, and a common target Ministry . . . ' (p. 10 of the report). price for rye, barley and maize. Article 5, as
I-3144
COMMISSION v GREECE
amended by Council Regulation (EEC) No this case, is that except in the case of inter- 1254/78 of 12 June 1978 (Official Journal vention purchases and subsequent sales by 1978 L 156, p. 1) provides for a threshold the intervention agencies officially price to be fixed for the Community in designated by the Member States under the respect of common wheat, durum wheat, conditions laid down by Community legis- barley, maize and rye. lation, operations on the cereals market must be left to the free interplay of supply and demand. Even in the event of regional difficulties it is only the intervention 44. Under Article 7(1), as amended by agencies which are entitled to take Council Regulation (EEC) No 1143/76 of particular measures, after being instructed 17 May 1976 (Official Journal 1976 L 130, to do so by the Commission by way of p. 1): the management committee procedure (Article 8(4)).
'The intervention agencies designated by the Member States shall be obliged to buy in cereals mentioned in Article 3 which have 48. The authorities of a Member State may been harvested in the Community and are not therefore instruct any public or private offered to them, provided that the offers body to buy and sell cereals at prices fixed comply with conditions, in particular in by those authorities — nor a fortiori may respect of quality and quantity, to be they cover the deficits liable to arise from determined in accordance with para- such operations or promote their financing graph 5.' by other means. Further articles under Title I of the regulation entitled 'Prices' give an exhaustive list of aid which may be paid by 45. Article 7(3) lays down the conditions Member States as 'carry-over payments' or subject to which quantities purchased may 'production refunds'. The Hellenic Republic be offered for sale for export to has therefore failed to fulfil its obligations non-member countries or for supply to the under Title I of Regulation No 2727/75. internal market.
46. Lastly, Article 8 (as amended by Regu- 49. Furthermore, the Court has consistently lation No 1143/76 of 17 May 1976, cited held that measures such as those in dispute above) provides as follows: here are not compatible with the principles and provisions of the common organization of the markets, of which the common organization of cereals may be said to 'To avoid substantial purchases having to be represent the archetype. made in certain regions of the Community under Article 7(1), it may be decided that the intervention agencies take particular intervention measures.' 50. It will be sufficient to refer to paragraph 16 of the abovementioned judgment in Case C-281/87 Commission v Greece, concerning 47. The conclusion to be drawn from all the purchase by Kydep of inferior-quality those provisions, which were not substan- durum-wheat from the 1982 harvest, which tially amended during the period material to reads as follows:
I-3145
OPINION OF MR MISCHO —CASE C-35/88
'The Court has held (see inter alia the jeopardize the aims or functioning of the judgment of 28 November 1978 in Case common organization of the market in 83/78 Pigs Marketing Board v Redmond question' (paragraph 34). [1978] ECR 2347, and the judgment of 17 January 1980 in Joined Cases 95/79 and 96/79 Procureur du Roi v Refer and Delmelle [1980] ECR 103) that the common organiz- The purchase price paid to producers and ations of the markets are based on the the selling price charged to breeders and concept of an open market to which every manufacturers of animal feed — both producer has free access under genuinely dictated to Kydep by the Greek auth- competitive conditions and the functioning orities — clearly relate exclusively to of which is regulated solely by the wholesale trade. instruments provided for in those organiz- ations. In particular, in sectors covered by a common organization of the market, and a 52. In its earlier judgment in Case 82/71 fortiori when that organization is based, as Pubblico Ministero Italiano v SAIL [1972] in the present case, on a common price ECR 119, the Court held: system, Member States can no longer take action, through national provisions adopted unilaterally, affecting the machinery of price formation as established under the common 'Thenceforth [that is, once the provisions organization.' for the common organization of a market had entered into force] it was for the Community authority alone to decide upon the provisional maintenance of any national system of organization, intervention or 51. The principle set out in the last sentence supervision . . . ' of that quotation was, unless I am mistaken, first laid down in the judgment in Case 31/74 Galli [1975] ECR 47, 4in which the 53. Lastly, the judgment in Case 169/82 Court nevertheless added Commission v Italy [1984] ECR 1603, at p. 1617, contains the following passage:
'It is clear from Regulation No 2727/75, 'that the price system established by Regu- and in particular from Article 2 thereof, that lations Nos 120/67 [on the common organ- the regulation provides for a system of ization of the market in cereals] and 136/66 prices and other measures intended to [on the common organization of the market establish a system of uniform prices for in oils and fats] is applicable solely at the cereals throughout the Community. Article production and wholesale stage, with the 10 provides for the grant on certain result that these provisions leave Member conditions of aid of a uniform amount for States free — without prejudice to other the whole Community for the production of provisions of the Treaty — to take the durum wheat. It follows from that system appropriate measures relating to price that any support measure must be decided formation at the retail and consumption upon at Community level in order to avoid stages, on condition that they do not the risk of jeopardizing the functioning of the system by the grant of additional aid' 4 — See also the judgment in Case 10/79 Toffoli v Regione Venelo [1979] ECR 3301. (paragraph 18).
I-3146
COMMISSION v GREECE
54. It is therefore clear that the instructions elaboration. The reference is thus all the given by the Greek authorities to Kydep to more ambiguous since it could quite well be buy or sell feed grain at prices they had set taken not to constitute a further head of are contrary to the provisions on the complaint but solely an ancillary complaint common organization of the market in relating to the infringement of the cereals inasmuch as they constitute national provisions governing the common organ- intervention measures in an area in which ization of the markets. It is true that the Community legislation is exhaustive. That Commission, in its reply (fourth paragraph applies a fortiori to the measures adopted by on p. 7), reiterates the following: those authorities to cover the financial liabilities incurred by Kydep as a result of such intervention. 'The fact remains that the Greek Government has never been prepared to produce a single one of those decisions, I V — 55. Whether the complaint of in- which bears out its failure to comply with fringement of Article 5 of the Treaty can be the duty of administrative cooperation with upheld seems to me more doubtful. In the the officials of the Commission, as is reasoned opinion (second paragraph on p. 2 required by Article 5 of the EEC Treaty.' and bottom of p. 6) the Commission had stated that the Hellenic Republic had failed to fulfil:
57. Moreover, it is clear from the documents produced by the Commission in response to the questions put to it by the 'its obligations under Article 5 . . . Court, and in particular from the telex sent by the Commission's Director-General for Agriculture to the competent Greek auth- orities dated 3 June 1987 — that is, after the (a) by pursuing operations which jeopardize reasoned opinion had been sent (5 February the functioning of other sectors of the 1987) but before the application had been agricultural market which depend on lodged (2 February 1988) — that the Greek the proper functioning of the cereals authorities were informed of the market for the purposes of their commencement of an inspection under production costs — particularly the Article 9 of Regulation (EEC) No 729/70 markets in pigmeat, poultrymeat and on the financing of the common agricultural eggs, beef and veal and dairy products, policy (Official Journal, English Special
and Edition 1970 (I), p. 218) and that the Commission had asked them to supply a whole series of particulars regarding (b) by failing to supply the requisite expla- relations between themselves and Kydep. It nations, for the involvement of the is not disputed that five reminders sent to Greek authorities in the management of the competent Greek authorities and to the market in feed grain'. Kydep between 3 June and 23 October 1987 produced no substantive results. 5 None of that evidence, however, appears in the application to the Court.
56. The application to the Court does not specify whether either or both of those 5 — See the addendum to the summary of the results of complaints are still included in the action. A inspection carried oul for the clearance of the EAGGF mere reference to Article 5 is to be found in accounts (Guarantee Section) for the financial year 1986, Annex VI to the replies given by the Commission to the the applicant's conclusions, without further questions put by the Court.
I-3147
OPINION OF MR MISCHO — CASE C-35/88
58. Since the Commission has not specified 62. As far as the common organization of in its application the grounds on which it the market in cereals is concerned, that duty considered that Greece had failed to fulfil to furnish, unrequested, all relevant infor- its obligations under Article 5, I would mation is, in any event, expressly formulated propose that the Court not uphold the claim in Article 24 of Regulation No 2727/75, that Article 5 was infringed. which provides that:
'Member States and the Commission shall 59. Having said that, I wish to make the communicate to each other the information following observations in case the Court necessary for implementing this regulation.' should none the less consider the complaint to have been worded precisely enough to warrant its being upheld.
In my view, that includes not only the usual particulars as to the volume of production, imports, exports and intervention purchases but also, where appropriate, any other 60. First, there can be little doubt that the information on the functioning of the Hellenic Republic has indeed failed market in cereals. throughout to comply with its duty to act in good faith under Article 5, because I believe that when the Commission, by way of a letter of formal notice, calls in question a provision of national law or a national 63. Since the Commission, in its practice the Member States are obliged to application, referred in general terms to the forward to the Commission, unrequested, infringement of the provisions of that regu- the text of such provisions and the other lation and subsequently specified that the official documents connected with the reference included Article 24, I take the dispute. view that the Court is entitled to find that the defendant has failed to comply with Article 24.
61. Although it is, of course, normal for the Commission and the Member States V —64. The complaint that the aid was sometimes to reach different conclusions as not notified pursuant to Article 93(3) of the to the compatibility with Community law of Treaty is certainly well founded since, by certain national legal provisions or certain virtue of having its deficits covered by the national practices, it is nevertheless essential State budget, Kydep enjoyed financial for the Commission to be fully and properly assistance from the State such as to informed of the existence, nature and scope constitute 'aid' for the purposes of Article of such provisions or practices, in order that 92(1) of the Treaty. It is not denied that the legal discussion may proceed on the such financial assistance was not at any time basis of accurate information. notified to the Commission.
I-3148
COMMISSION v GREECE
Conclusion
65. For the reasons set out above I propose that the Court should declare the application admissible and should find that the Hellenic Republic has failed to fulfil its obligations under the provisions of Title I ('Prices') and under Article 24 of Regulation No 2727/75 on the common organization of the market in cereals, and also under Article 93(3) of the EEC Treaty. Accordingly, the defendant Member State must be ordered to pay the costs of the case.
I-3149