C-68/88

OPINION OF MR TESAURO —CASE 68/88

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 30 June 1989 *

Mr President, (iii) by failing to carry out post-clearance Members of the Court, recovery of the abovementioned amount pursuant to Articles 1 and 2 of Regulation (EEC) No 1697/79, 4

1. For the second time the Court of Justice is called upon to give judgment by default. 1 The Hellenic Republic did not lodge a defence within the prescribed period. (iv) by failing to institute appropriate Accordingly, by a document lodged on 9 criminal and/or disciplinary June 1988 the Commission applied for proceedings, pursuant to Article 5 of judgment by default pursuant to Article the EEC Treaty, against the persons 94(1) of the Rules of Procedure. Its who committed or contributed to the conclusions were as follows: fraud,

(i) by failing to establish, pursuant to (v) by failing to carry out the necessary Articles 1, 9 and 10 of Regulation 2 verifications and inquiries and the (EEC, Euratom, ECSC) No 2891/77 3 additional inspection measures and Regulation (EEC) No 2727/75, requested by the Commission pursuant certain own resources, in particular the to Articles 1 and 18 of Regulation agricultural levies due on certain (EEC, Euratom, ECSC) No 2891/77; consignments of maize imported from a non-member country in the amount of DR 447 053 406, and to make that sum available to the Commission on 20 July 1986 at the latest, the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty.'

(ii) by failing to pay interest on the abovementioned sum as from 20 July 1986 until the day of payment, in accordance with Article 11 of Regu­ 2. The legislative background is as follows. lation (EEC, Euratom, ECSC) No Article 13(1) of Regulation (EEC) No 2891/77, 2727/75 on the common organization of the market in cereals provides that a levy * Original language: Italian. equal for each product to the threshold 1 — The other case in which judgment was given in default was price less the cif price is to be charged on that of 23 March 1988 in Case 105/87 Morabito [19881 imports. ECR 1707. 2 — OJ1977,L 336, p. 1. 3 — OJ 1975, L 281, p. 1. 4 — OJ 1979, L 197, p. 1.

Finally, pursuant to Article 2 of Regulation (EEC) No 1697/79 the competent auth­ orities must recover duties not collected where they find that all or part of the The official documents relating to the first import duties or export duties legally due of the two consignments at issue, carried by have not been required from the person the vessel Alfonsina, indicate that that vessel, liable for payment. after taking on board some 9 000 tonnes of maize at the Greek port of Kavala between 30 April and 7 May, proceeded to Salónica in order to complete the necessary customs The system thus established is intended to formalities, on 8 and 9 May, before sailing ensure that the correct amounts of to Belgium. Community own resources are properly established and collected when due.

However, the Commission came to the 3. The facts of the present case and the conclusion that the Alfonsina took the maize course of the procedure are described in the on board at Koper in Yugoslavia between

OPINION OF MR TESAURO —CASE 68/88

25 April and 3 May and put in at Salonica to allow a number of checks to be carried from 8 to 9 May — it did not put in at out, including an inspection of the records Kavala at all — simply in order to for the maize silo at Salonica and of the 'transform' the 'Yugoslav' documents into documents recording train movements 'Greek' documents by a kind of magical during the week in which the vessel was operation which although perhaps not spec­ loaded. tacular was certainly not lacking in financial benefits.

The information gathered, which is volu­ minous and consistent and was obtained by thorough inquiry, provides support for the view that in both cases the maize exported With respect to the operations relating to that consignment, too, the Commission 5 — See most recently the judgment of 25 April 1989 in Case complains that the Greek authorities refused 141/87 Commission v Italy [1989] ECR 943, paragraph 15.

COMMISSION v GREECE

from Greece to Belgium as a product of instigated by the Greek authorities but Greek origin in fact came from Yugoslavia. rather by a competitor of the defendant company and they appear to relate to only one of the two consignments — does not of itself release the authorities of a Member In those circumstances, without my thereby State in which a fraud has been committed postulating a reversal of the onus of proof, in relation to goods subject to agricultural it was, in line with previous dicta of the levies from the duty to establish and make Court, 6 incumbent upon the Hellenic available to the Commission the full amount Republic to refute in substance and in detail of own resources, including any sums which the information produced and the may not have been collected. conclusions drawn from it.

8. However, the Greek authorities did no more than plead in somewhat general terms at the pre-litigation stage that the matter The two courses of action may in fact was the subject of a judicial investigation pursue aims and have effects which differ to and that it was necessary to await the some extent, one being to guarantee that outcome of those proceedings before the Community receives its own resources in carrying out the measures proposed by the due time and the other being to prosecute Commission. those responsible for the fraud.

OPINION OF MR TESAURO —CASE 68/88

article which, as the Commission correctly Moreover, the Court has held that: remarked in its application, in a way provides the background to and the basis for the proceedings with which we are concerned — is one which must be strictly 'the default interest provided for by Article complied with by the Member States in 11 of the regulation is payable in respect of order to ensure that the Community may "any delay", regardless of the reason for dispose of its own resources in the best the delay in making the entry in the possible conditions. Commission's account'. 9

In that area the Member States have a real In any case there can be no justification for duty to take the initiative, a duty which the allowing the Government of the Hellenic Greek authorities do not appear to have Republic to profit by its failure to establish discharged in the present case. Indeed, they own resources in order to evade the obli­ merely took refuge behind a general gation to pay interest in case of delay. reference to the existence of criminal proceedings without ever going into the substance of the issues raised.

11. The complaint concerning failure to effect post-clearance recovery of the uncol­ lected levies, pursuant to Article 2 of Regu­ The first allegation is therefore well lation No 1697/79, also appears well founded and the Commission's calculation founded. of the sum of which payment was evaded also seems to be correct.

The option of not effecting post-clearance recovery of such duties, offered by Article 10. In its second submission, the 5(2) of that regulation, presupposes that Commission asks the Court to declare that there has been an error on the part of the interest should have been paid on the sum competent authorities and good faith on the due from 20 July 1986 until that sum was part of the person liable for payment, paid. together with observance by the latter of all the requirements concerning his customs declaration; those conditions do not appear to have been satisfied in this case.

criticizes the Greek authorities for not measures adopted; in that regard, the having commenced appropriate criminal and laconic reply given by the Greek authorities disciplinary proceedings against the perpe­ to the Commission's reasoned opinion trators of the fraud and their accomplices. cannot be regarded as sufficient — besides being given belatedly, it merely indicated That submission also appears to be well that the relevant documentation and the founded. The obligation imposed by Article report sent by the Commission had been 5 of the Treaty to take all appropriate forwarded to the judicial authorities. measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action 13. Similarly vague and inchoate were the taken by the institutions of the Community replies given by the Greek authorities entails a duty to prosecute and impose concerning the inquiries and verifications appropriate penalties on those who infringe carried out and the additional inspection Community law in such a way as to measures requested by the Commission at prejudice its effectiveness. the end of January 1987. In that case, too, despite the repeated requests from the Commission, it does not appear that any The general indications given by the Greek precise information has been provided as to authorities in the pre-litigation phase in the progress and results of any inquiries. response to precise requests from the Commission do not provide adequate support for the conclusion that the Greek It must therefore be concluded that the Government fulfilled that duty satisfactorily. Government of the Hellenic Republic failed to carry out adequate inquiries and verifi­ On the contrary, it is quite apparent that, cations and did not take the additional approximately three years after the material inspection measures requested by the events, there is no news of the initiatives Commission pursuant to Article 18 of Regu­ taken by the competent authorities and the lation (EEC, Euratom, ECSC) No 2891/77.

(iii) by failing to carry out post-clearance recovery of the abovementioned amount pursuant to Articles 1 and 2 of Regulation (EEC) No 1697/79,

(iv) by failing to institute appropriate criminal and disciplinary proceedings, pursuant to Article 5 of the EEC Treaty, against the persons who committed or contributed to the fraud,

(v) by failing to carry out the necessary verifications and inquiries and the additional inspection measures requested by the Commission pursuant to Articles 1 and 18 of Regulation (EEC, Euratom, ECSC) No 2891/77,

the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty;

(2) order the Hellenic Republic to pay the costs.