C-200/88

OPINION OF MR MISCHO —CASE C-200/88

O P I N I O N OF MR ADVOCATE GENERAL MISCHO delivered on 9 O c t o b e r 1990 *

Mr President, 3. In its statement of defence, however, the Members of the Court, Hellenic Republic requested the Commission 'to consider the advisability of adding to the already very large number of cases before the Court by means of proceedings which, as in the present instance, are of no legal significance and refer only to matters of fact'. 1. The application brought by the Commission against the Hellenic Republic seeks a declaration that by omitting to forward within the stipulated periods certain information relating to the quantities and 4. However, it must be acknowledged in prices of fish caught by Greek vessels or this regard that the information in question imported from non-member countries, the is necessary in order properly to fix the Hellenic Republic has failed to fulfil its obli- guide prices, reference prices, and free- gations under Articles 11(1) and (3), 15(2) at-frontier prices which, for their part, have and 21(3) of Council Regulation (EEC) No an essential role to play in the various 3796/81 of 29 December 1991 on the market support mechanisms which may common organization of the market in enter into operation in order to protect the fishery products (Official Journal 1981 interests of Community fishermen. L 379, p. 1, hereinafter referred to as 'the basic regulation'), as well as under certain provisions of the Commission's implementing regulations, Regulations (EEC) Nos 3191/82 and 3598/83. I would refer to the Report for the Hearing for a description of the relevant legislative provisions. 5. The Court has consistently held, moreover, that whether an action is to be brought against a Member State for failure to fulfil its obligations is a matter entirely within the discretion of the Commission. 1

'a Member State may not plead provisions, 8. However, the fact is that the version of practices or circumstances existing in its the regulation on the common organization internal legal system in order to justify a of the market in fishery products which is failure to comply with obligations and time- here in question and the relative limits resulting from Community law'. 3 implementing regulations were adopted only after the accession of Greece, which became effective on 1 January 1981. Furthermore, it was only on 7 October 1986 that the Commission sent the letter of formal notice instituting the infringement procedure which 11. More recently, the Court replied in like led to the present application. The latter was terms to a similar argument in its judgment not brought until 21 July 1988. The in Case C-48/89 Commission v Italian Hellenic Republic therefore had a Republic [1990] ECR 1-2425, where the considerable amount of time to set up the defendant, as in the present case, had necessary administrative structures, and the pleaded difficulties in applying the measure Commission cannot be criticized for having which required it to supply certain infor- adopted an attitude 'incompatible with the mation to the Commission. In that case the principle of cooperation which must govern Court confirmed its earlier judgments to the relations between the Member States and effect that: the Community institutions' (p. 3 at the conclusion of the statement of defence).

'practical difficulties which appear at the stage when a Community measure is put into effect cannot permit a Member State 9. In any event, so long as there is no unilaterally to opt out of fulfilling its obli- dispute as to the validity and applicability of gations'. 4 the provisions relied on by the Commission, which is certainly the case in the present 3 — Sec, in particular, the judgment in Case 254/83 Commission vItalian Republic [\W] ECR 3395. 4 — See, in particular, the judgments in Case 128/78 2 — Regulation on the communication of information for the Commission v United Kingdom [1979] ECR 419 and in purposes of the common organization of the market in Case 39/72 Commitsion v Italian Republic [1973] fishery products (OJ 1990 L 111, p. 50). ECR 101.