C-86/89

ITALY v COMMISSION

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 12 July 1990 *

Mr President, 4. The Italian Government did not consider Members of the Court, this scheme to be sufficient. It expressed its dissatisfaction in a memorandum sent to the Commission on 12 September 1987, in which it requested additional aid, possibly financed out of the national budget (it appears that this solution was rejected by A — Facts the management committee which was involved in the adoption of the aforemen- tioned Commission regulation).

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OPINION OF MR LENZ —CASE C-86/89

procedure provided for in Article 93(2) of 10. According to the Italian Government, the EEC Treaty. the contested Italian measure does not in fact favour Italian producers or affect trade between the Member States. It is designed to offset distortions of competition as between areas where alcoholic strength is 7. This procedure resulted in the increased by the addition of sucrose and Commission decision mentioned above, other areas where such enrichment can be which found essentially that the aid was carried out only using rectified concentrated unlawful because it infringed Article 93(3) musts, which are more expensive. of the EEC Treaty, that it was also incom- Admittedly, because of this, Community aid patible with the common market and that it has been introduced for producers who use consequently had to be abolished (the rectified concentrated musts, but that aid is Commission was to be informed within a not sufficient to cover the difference in period of two months of measures taken in costs. The Community aid, which fails to this regard). take sufficient account of the difference in costs within the meaning of Article 45(3) of Regulation No 822/87, therefore does not make it possible to maintain patterns of trade in concentrated must and coupage 8. It is now necessary to examine in detail wines for wine-growing zones C III, as whether this decision can be allowed to provided for in Article 45(2). On the stand or whether it must be set aside on contrary, having regard to the fact that grounds of illegality. rectified concentrated grape musts are obtained principally from wine-growing zones C III, exports from this zone have decreased since the introduction of the Community aid. It is also significant that the level of Community aid was increased for B -— Opinion the 1988/89 wine year (it was almost equal to the sum of the Community aid granted for the previous year and the Italian national aid), as a result of which it was not necessary to grant any additional national 9. 1. The applicant claims above all that aid. reliance has incorrectly been placed on Article 92(1) of the Treaty, which states that:

12. (a) It does not appear necessary in this 14. (b) The starting point for my exam- connection to express a view on the ination is first the fact that the applicant's Commission's argument that the contested main criticism is directed at the level of aid decision was primarily adopted — as is provided for by the Community as fixed in apparent from Article 1 thereof — on the Commission Regulation No 2287/87. It is, basis of Article 93(3) of the EEC Treaty, however, necessary to point out that this which states that: question was manifestly dealt with under the management committee procedure when the regulation was adopted by the Commission. T h e p r o p e r action would therefore have been to contest that Community measure. Once the period for bringing an action has expired, however, a Member State which is fully entitled to act can definitely no longer 'The Commission shall be informed, in claim that the aid measure decided on by sufficient time to enable it to submit its the Community is not in order. In particular comments, of any plans to grant or alter a Member State cannot claim that it is aid. If it considers that any such plan is not insufficient having regard to the objective compatible with the common market having pursued under Article 45 of Regulation No regard to Article 92, it shall without delay 822/87 and that that objective could initiate the procedure provided for in therefore be achieved only through the help paragraph 2. The Member State concerned of a national measure. shall not put its proposed measures into effect until this procedure has resulted in a final decision.'

decision — refers to a product which is the position of Italian wine producers and that subject of a common organization of the of producers in other Member States who market governed by comprehensive rely on sucrose to increase alcoholic strength Community rules. In this connection, the (purportedly in order to achieve equal Court has long ruled that where compre- treatment between the latter and the Italian hensive Community rules exist (in this case I producers). The Commission has shown that would mention in particular Commission it is not only in Italy that rectified concen- Regulation No 2287/87, to which repeated trated grape must is used to that end, and reference has already been made), it is no that wine-growing zones C III, which I longer possible unilaterally to adopt national have already mentioned, also include areas measures, in particular in so far as such in France and Greece (according to Annex measures have an effect on a system of IV to Regulation No 822/87). However, in common prices, since this would amount to so far as the applicant maintained that the interference in an area in which the use of sucrose was possible in most regions Community alone is competent. Without in France and that it was only recently that going into the details of the cases must was also used in some regions to a concerned, I would refer to the judgments limited extent, and that in Greece alcoholic delivered in the fairly recent past in Cases strength was only rarely increased and then 255/86, 3127/87, 4 212/87 5and C-281/87. 6 only by means of concentrated grape must (that is to say, not by means of rectified concentrated grape must), the Commission has cogently shown in the rejoinder that even in France — as can be seen from the aid applications produced — rectified concentrated grape must is very extensively used (the figures quoted by the Commission also show that, during the 1987/88 wine 17. (d) If we make the assessment in the year, there was in Italy a sharp increase in context of the Treaty provisions dealing the quantities of rectified concentrated with aid, on which, after all, the decision is grape must used for the purpose of based, the Commission is correct in its view increasing alcoholic strength, a development that the additional Italian aid favoured which may very likely be attributable to the Italian production and must be regarded not additional national aid granted). only as distorting competition but also as affecting trade between Member States.

correctly pointed out that this finding was 22. For its part, the Commission rightly unaffected by the applicant's reference to points out that the national aid must be prices on the kalian market (in which there regarded as a mere operating aid, since it was no variation during the six-month was granted solely in proportion to the period before and after the adoption of the quantities used. Such a measure, since it was decree on 21 November 1987), since this not accompanied by any restructuring has no bearing on any effects on Greek and measures, must be the subject of particularly French producers and does not show what strict appraisal. The Commission also the price situation would have been in Italy correctly pointed out that, under Article in the absence of the national aid. 92(3)(c), trading conditions must not be adversely affected to an extent contrary to the common interest. This, however, must be the case, first because the national measure has to be regarded as amounting to an infringement of the common organ- ization of the market in wine, and secondly because the national aid measure gave rise to increased production of must and wine, which in turn placed an additional burden 20. The Commission is also justified in its on the common agricultural policy. view — as regards the second element Furthermore, the Commission has also required under Article 92 of the EEC rightly pointed out that, according to the Treaty — that the national measure in case-law of the Court (see, for example, the question did affect trade between Member judgment in Case 730/79 7), the States. As the applicant has not presented Commission has a wide discretion in the anything of substance on this point, it is application of Article 92 and the applicant sufficient in my view to refer to Part V of has not claimed that the Commission the contested decision, which clearly shows committed a manifest error or that it based how much wine is produced in Italy, how its decision on incorrect information, which much is exported to other Member States, it is necessary to show in such cases. how much is imported into Italy and, finally, how much grape must is exported from Italy.

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