C-110/89
ECLI:EU:C:1991:154
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COMMISSION v GREECE
OPINION OF MR ADVOCATE GENERAL LENZ delivered o n 18 April 1 9 9 1 *
Mr President, of the Greek Minister of Commerce of 4 Members of the Court, and 12 December 1980 provide that every exporter must, for purposes of exchange control, fill out an 'export declaration and invoice' form and submit it to a merchant bank for an endorsement confirming that the price indicated is correct. In the case of certain, individually specified products, A — Facts endorsement is required instead by the Bank of Greece; however, this is not the case with maize exports. Notwithstanding this, a telex of 2 September 1985 from the Bank of Greece to the merchant banks required, in the case of maize exports, 'prior endorse- ment by the export control department' of the Bank of Greece. It is not disputed that 1. In the action for failure to fulfil obli- the Greek customs authorities allowed gations with which this Opinion will deal, maize to be exported during the period in the Commission alleges that the Hellenic question only if the procedure set out in the Republic prevented private traders from above telex had first been complied with. exporting maize to other Member States of the Community during the last four months of 1985 (September to December) and that it thereby breached ' Article 34 of the EEC Treaty and the common organization of the market in cereals. 2
3. According to the Commission, barriers to exports arose through the procedure which the Bank of Greece was thus required to apply, as the relevant department refused to 2. More precisely, the parties are in dispute issue the endorsement in the case of private over the issue whether the defendant traders or unreasonably delayed such issue, Member State made use of a domestic in contrast to the case of applications made administrative procedure applicable to by the Central Office for the Management exports in a manner which corresponds to of National Produce (hereinafter referred to the complaint made by the Commission. as 'KIDEP'); in the Commission's opinion, Decisions No E4/10110 and N o B3.1871 KIDEP, the function of which will be familiar from other cases brought before the * Original language: German. Court, 3 had a particular interest in this 1 — On the allegation made ai the hearing that there was a discriminatory treatment. breach of Article 5 of the EEC Treaty, see also paragraph 5. 2 — Regulation (EEC) N o 2727/75 of the Council of 3 — Judgments in Case C-281/87 Commiuion v Gmct [1989] 29 October 1975 on the common organization of the ECR 4015; Case C-35/88 Commiuion v Crtea [1990] market in cereals (OJ 1975 L 281, p. 1), as subsequently ECR 1-3125; and Case C-32/89 Greece v Commiuion amended. [1991] ECR 1-1321.
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4. The Commission claims that the Court 7. Further details of the relevant legislation, should: the arguments and evidence and of the procedure are provided where necessary in the following section of the opinion. For the rest, I would refer to the Report for the Hearing. (i) Declare that, by restricting and prohib- iting exports of maize by private persons during the autumn of 1985 (September to December 1985) while at the same time permitting KIDEP (Central Office for the Management of National B — Opinion Produce) to export maize, the Hellenic Republic has failed to fulfil its obli- gations under Community law, in particular under Regulation (EEC) N o 2727/75 on the common organ- 8. I. Before presenting my views on the ization of the market in cereals — of question whether the Commission's which Article 34 of the Treaty forms an application is well founded, which is the integral part — and the corresponding central issue in the present proceedings, I implementing regulations; wish to make two preliminary remarks.
(ii) Order the Hellenic Republic to pay the costs. 9. 1. With regard to the content and scope of the submissions to be examined, I would subscribe to the view expressed by the Hellenic Republic that the application made during the oral procedure in respect of 5. The Commission also referred during the Article 5 of the EEC Treaty cannot be taken oral procedure to the arguments set out in into account on the ground that it does not the application, in which it had criticized comply with Article 38 of the Rules of the failure of the Hellenic Republic to Procedure. That article provides that an provide sufficient assistance in clarifying the application must state the subject-matter of facts in the pre-litigation procedure. In view the proceedings and the forms of order of this attitude, which the defendant did not sought by the applicant. While the change during the proceedings before the Commission, in its application in the present Court of Justice, the Commission now also case, did criticize the defendant's pre-liti- claims that the Court should declare that gation conduct from the perspective of there has been a breach of Article 5 of the Article 5, it at no point intimated that it EEC Treaty. wished the Court to rule on that matter. The present application may for that reason be examined only in the light of the claims contained in the document instituting the 6. The Hellenic Republic, which takes the proceedings, which in that regard determine view that the submissions on the latter point the subject-matter of the proceedings. 4 have been made out of time, contends that the application should be dismissed and the 4 — On this problem, see the Court's judgment in Case 232/78 Commission v France [1979] ECR 2729, in particular Commission ordered to pay the costs. paragraph 3.
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10. 2. So far as concerns the admissibility of 12. 1. So tar as concerns the legal the application with its subject-matter thus framework with which the Commission's defined, doubts can arise solely from the complaints are concerned, it must first be fact that, even according to the pointed out that obstruction of exports of Commission's application, the alleged the products here at issue constitutes a breach had already been ended when the measure having equivalent effect within the formal letter of notice was issued meaning of Article 34 of the Treaty, since it (11 November 1986) and that it could for is directly and actually capable of hindering that reason be argued that the conditions set intra-Community trade 7 and has in out in the second paragraph of Article 169 addition the specific effect of restricting of the EEC Treaty were not satisfied. It patterns of exports in such a way as to suffices in this regard to point out that the provide a particular advantage for the defendant has consistently contested the domestic market. 8 breach of which it is accused (since the beginning of the pre-litigation procedure and before the Court up to the conclusion of the oral procedure).
According to the 13. The Greek Government has not sought judgment in Case 199/85, 5 the purpose of to rely on any exceptions to this system of the procedure provided for in Article 169 of freedom to export (which, according to the EEC Treaty is, inter alia, to avoid a Article 21 of Regulation N o 2727/75, also situation in which a Member State's conduct applies to goods coming under the common is put at issue before the Court when, organization of the market in cereals) either following the commencement by the under Article 36 or pursuant to other Commission of the infringement procedure, imperative grounds recognized by the State admits the breach of obligations Community law, and has limited itself to with which it is charged and remedies that contesting the facts alleged by the breach within the period fixed by the
Commission. Commission. In the present case, however, as I have already demonstrated, the first of those two conditions has not been satisfied. In the light of this interpretation of Article 169 of the EEC Treaty, the present 14. However, acceptance of the facts as application is therefore admissible. 6 argued by the Commission results in the conclusion that there has been a breach not only of Article 34 but also of Regulation N o 2727/75. The Court has, however,
ruled on several occasions that once the Community has adopted regulations under 11. II. With regard to the issue whether the Article 40 of the EEC Treaty establishing a application is well founded, it is necessary to common organization of the market in a recapitulate in brief the legal framework given sector, Member States are under an (which is not in dispute) and then to examine the question whether the 7 — See judgment in Case 8/74 Procureur du Roi v Benoit and Gustave Dassonvitle [1974] ECR 837, at paragraph 5. Commission has substantiated its complaint. 8 — See the judgment in Case 15/79 Groenveld BV v Produktschap voor Vee en Vlees [1979] ECR 3409. With the exception of one case, in which the Commission 5 — Judgment in Case 199/85 Commission v Italy [1987] suspects that KIDEP was able to export a quantity of ECR 1039, at paragraph 7. maize in place of a private trader on tne ground that the 6 — On the problem here dealt with, I would also refer to my corresponding 'export licence' (see footnote 14 below) of Opinions in the following cases: Case 103/84 Commission that trader had been withdrawn a short time previously, the v Italy [1986] ECR 1759, at 1761; Case 240/86 Commission does not appear to be proceeding on the basis Commissioni Hellenic Republic [1988] ECR 1835, at 1843; that exports were (systematically) transferred from private and Case C-247/89 Commission v Portugal [1991] traders to KIDEP. In general, it suggests only that KIDEP ECR 1-3659, at 1-3670. was not subject to those obstacles.
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obligation to refrain from taking any 16. 2. Let us now turn to the issue of measure which might undermine or create whether the Commission, which bears the exceptions to it. According to this 13 burden of proof in this regard, has proved case-law, it is necessary to proceed on the the breach of the Treaty which it alleges basis that the common organizations of the and which Greece denies. markets are based on the concept of an open market to which every producer has free access and the functioning of which is regulated solely by the instruments provided for in those organizations. 1 0 Since the restriction on exports complained of in the 17. (a) I wish to begin my examination of present case had a unilateral effect on the this matter by taking a look at the two operation of the market different from that letters sent to the Bank of Greece by the provided for by Regulation N o 2727/75, Cargill company on 12 December 1985 and the Commission is correct in its contention 14 January 1986 and which the Court that the conduct which it imputes to the allowed the Commission to produce out of defendant amounts to a breach not only of time in the context of the procedural Article 34 but also of that regulation. ' ' application. It appears from those letters that Cargill applied on 22 November 1985 for an 'export licence' 1 4 but that this had not been issued by the date of the second letter (14 January 1986).
According to the Commission's arguments, which were not contested, such a long period of time, considered in the light of normal practice in the grain trade, not only amounts to a 15. In so far as the Commission takes the delay, but is also tantamount to a complete view that the obstacles at issue were not obstruction of export trade. applied to K I D E P and also expresses that opinion in the arguments set out in its application, there cannot be any objection to this limitation of the subject-matter of the
proceedings. Moreover, I do not believe it is necessary to examine the accuracy of those 18. The Greek Government has not views, since such treatment accorded to disputed the contents of those letters in its K I D E P would correspond only to the comments on them or in its reply to the provisions of the Treaty and the common relevant question put by the Court. It has organization of the market without in any merely submitted that the company way affecting the alleged breach in respect concerned provided an incomplete version of exports effected by private traders. ' 2 of the facts. It also added during the oral procedure that it was significant that Cargill 9 — See, for example, the judgments in Case 111/76 Officier had failed to seek redress before the Greek van Justitie v Van Den Hazel [1977] ECR 901; in Case 83/78 Pigs Marketing Boardi Redmond [i 97 i] ECR 2347;
courts. In my opinion, that argument cannot in Case 124/85 Commission v Greece [1986] ECR 3935; and in Case 272/86 Commission v Greece [1988] ECR 4875. 13 — See the basic judgments in Cases 96/81 and 97/81 Ό — See the above judgments in Case 83/78 Pip Marketing Commission v Netherlands [1982] ECR 1791 and 1819, Board v Redmond (at paragraph 57) and in Case C-35/88 most recently confirmed in the judgment in Case C-244/89 Commission v France [1991] ECR 1-163, at paragraph 35. Commission v Greece (at paragraph 29). 14 — This presumably refers to the disputed endorsement.
In 11 — See in this connection the judgments in Cases 83/78 and reply to a question put by the Court, the Greek 272/86, cited in footnote 9; in a more recent judgment in Government stated, without being contradicted, that Case C-205/89 Commission v Greece [1991] ECR 1-1361, exports required no administrative authorization other at paragraph 13, the Court left the problem unresolved. than endorsement of the export declaration and invoice 12 — See the second paragraph of footnote 8. form.
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alter my views based on the letters whose indicate that KIDEP was under an obli- late submission the Court has accepted. The gation, irrespective of the quantities important point in this regard is that these collected by it, to make available the events took place with the participation of amounts of maize needed to meet domestic the Greek authorities, and as a result the requirements, but also that private grain contents of the letters submitted may be traders were able during that period (from treated as disproved only if the defendant September 1985) to offer to producers Member State makes substantiated higher prices than KIDEP as they exported comments concerning the matters at issue all quantities at even higher prices.
The and puts forward a different version of the Court found in Cases C-35/88 and C-32/89 facts, if necessary by producing the relevant that the Greek State has since 1981 made up documents. ' 5 the losses incurred by KIDEP by reason of its interventions on the market in cereals and that purchase and sales prices were also set for KIDEP by the Greek authorities. 18 With particular regard for the desire not to increase sales prices, taking account of
19. It follows that the Commission's Greek cattle breeders, there arose an complaint is well founded in so far it relates interest under the circumstances described to the case of the Cargill company and that in blocking the demand at higher prices the duration of the alleged breach is in any connected with the export business of event proved by that case. private trading companies. Had this not been done, it would have been necessary to increase the purchase price, a development which, in the absence of any alteration to the sales price, would have increased the 20. (b) Furthermore, in my opinion, the requirements of KIDEP for compensatory information available also justifies the payments from the State or, in the absence conclusion that the situation just outlined is of any alteration to the purchase price, not an isolated case but is rather typical of would have called in question KIDEP's the general practice in Greece during the ability to fulfil its function as a supplier. period in question. Finally, if there had been an increase in both the purchase and sales prices, the purpose of intervention at prices fixed by the State, namely to support Greek cattle breeders, ' 9 would itself have been placed in jeopardy.
21. So far as concerns the interests involved, which the Commission believes led Greece to engage in the conduct complained of, I would refer to the minutes of the 36th general meeting of KIDEP, with which the Court will already be familiar from Cases C-35/88 »' and C-32/89 17 22. In view of this situation, I do not and the content of which, as appears from believe that any importance attaches to the the document produced by the Commission, question whether, as the Commission has not been contested.
Those minutes 18 — See the judgments in Case C-35/88, cited above, at para- graphs 22 to 25, and in Case C-32/89, also cited above, at 15 — For a similar case, see the judgment in Case 272/86 (cited paragraphs 15 and 16. above at footnote 9), at paragraph 21. 19 — See the uncontested submissions made on page 10 of the 16 — See footnote 3 above: at paragraph 20. application, where it is pointed out that KIDEP is engaged 17 — See footnote 3 above: at paragraph 13 et seq. in providing the market with subsidized maize.
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appears to think, K I D E P had any interest in grounds of currency control in order to exporting in the place of private traders justify the procedure here at issue, but (such as the interest in using for its own rather submitted that that procedure was ends advantages accruing from differences intended to improve statistical tracking and in the prices of Greek and imported maize). control over the movement of goods. It is also not important to ascertain whether However, those reasons do not deal satis- the situation just described was aggravated factorily with the complaint made by the during the period in question by reason of a Commission. So far as concerns the stat- devaluation in the drachma on 19 October istical tracking, a simple export declaration 1985 — the Hellenic Republic apparently would have been sufficient to guarantee it, wishes to deduce from this date that there without any need for an endorsement, on was previously no particular interest in the issue of which the export operation preventing exports. depended. The argument based on super- vision of the movement of goods can be understood in two ways. Either it relates to statistical requirements, in which case the above considerations apply; or it means that the procedure was designed to make it 23. The procedure for endorsement by the possible, where appropriate, to obstruct export control department of the Bank of exports, in which case the Commission's Greece, which in the Commission's opinion complaint would only be confirmed. was used to block maize exports during the period in question, cannot satisfactorily be explained by currency control requirements or on the other grounds put forward by the Greek Government as justification in the present case.
26. The fact that articles from the news- papers Ta Nea (of 7 November 1985) and To Kerdos (of 8 November 1985), which the Commission initially quoted and 24. With regard first of all to currency subsequently produced before the Court, control, this was already ensured through refer to a public statement by the Minister the procedure by which the acting merchant for Commerce that exports were to be bank confirmed through the use of the banned from 2 September 1985, supports in endorsement that the commercial operation general the accuracy of the Commission's in question complied with currency argument. The above article from the exchange requirements. This ties in with the newspaper Ta Nea also states that the Bank fact, to which the Commission rightly drew of Greece was to be given the task of attention, that it was the export control applying the ban. While the defendant department of the Bank of Greece which Member State has pointed out that the was competent in this case, rather than a Minister for Commerce did not impose a department responsible for currency matters. ban on exports, it has not attempted to explain how those press articles (which form an essentially consistent picture) could have come about. 20 Rather, it confined itself to making two observations. In the first place,
25. It was for that reason that the 20 — To the same end, see the article of 6 November 1985 in defendant Member State did not rely on the the newspaper / Vradyni produced by the Commission.
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it has cast general doubt on the credibility (e) documents relating to three export of press articles; secondly, it states — in operations carried out by KIDEP during response to the Commission's argument that the period in question on the basis of pressure was put on the Minister for Agri- endorsements issued prior to that culture to impose a ban on exports — that period; the Minister of Agriculture was not competent to take such a decision and that the Commission's submission does not establish that the Minister of Commerce actually adopted the disputed measure.
(f) (in the rejoinder and the reply to a question put by the Court) a table 21 listing the exports effected during the 27. During the pre-litigation procedure and period in question by private traders, before the Court, the Hellenic Republic but giving no indication of the dates on produced the following information and which endorsements were applied for or documentation for the purpose of refuting issued. all of the Commission's complaints:
(a) a list detailing applications for endorse- 28. T h e last point requires an additional ments submitted in 1986; observation. The table submitted by the Greek Government lists three export oper- ations, two of which were carried out by the Cargill undertaking on 14 October 1985 and came to 5 500 tonnes each, while the third was carried out by the Kadinopoulos (b) information on the total weight of the undertaking on 27 September 1985 and quantities of maize exported during the amounted to 20 000 tonnes. So far as period in question by private traders and Cargill is concerned, there is no indication KIDEP (approximately 69 000 tonnes); that the two export operations were based on endorsements issued during the period in question. O n the contrary, the documents submitted by the Commission in its replies to the questions put by the Court — copies of a letter sent by Cargill on 23 April 1990 (c) information on quantities exported to the Commission and of the export during the whole of 1985 by private declaration and invoice forms relating to the traders and KIDEP; above exports — would tend to suggest that the endorsements for both operations were issued on 16 August 1985. So far as concerns Kadinopoulos, the Commission drew attention, in its formal letter of notice (d) information on quantities produced in 21 — This has, however, already been mentioned in lhe Greece in 1984 and 1985; statement of defence.
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and — before the Court — through the quantity of 20 000 tonnes and which conse- production of extracts from newspapers, to quently does not make a closer identifi- the fact that that undertaking had received cation possible. 'by mistake' an endorsement issued by a branch of the Bank of Greece on 27 September 1985 for the export of a 29. For those reasons, none of the infor- specific quantity of maize, but that it was mation or documents already referred to is requested by the Greek authorities to refrain capable of affecting the probative value of from using it and that it complied with that the evidence produced by the Commission. request. This circumstance could operate This is all the more the case when one in favour of the defendant only if it considers that, at the conclusion of the had demonstrated that the export of written procedure, the Court expressly 27 September 1985 had been completed on requested the defendant Member State to the basis of the endorsement issued the same produce a table listing all endorsement day. However, the Hellenic Republic, in applications lodged during the relevant reply to the question expressly put by the period, along with information on the Court, merely stated that it did not know outcome of those applications, specifying in whether the two events related to the same each case the names of traders, dates of case. There is nothing else in the relevant application and decision, and quantities and documents which would suggest that the destinations; the Hellenic Republic, two events relate to the same case, apart however, failed to reply to that question, from a (late) statement made by the thereby demonstrating a lack of cooperation Hellenic Government during the oral with the Community authorities and a procedure, which, however, does no more failure to make use of the opportunities than imply that the above endorsement of offered to defend itself in an effective 27 September 1985 also related to a manner.
C — Conclusion
30. For all the above reasons, I propose that the Court should:
(1) Declare that, by obstructing exports of maize by individuals to other Member States during the autumn (September to October) of 1985, the Hellenic Republic has failed to fulfil its obligations under Article 34 of the EEC Treaty and Regulation (EEC) N o 2727/75;
(2) Order the Hellenic Republic to pay the costs pursuant to Article 69 of the Rules of Procedure.
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