C-371/92

OPINION OF MR VAN GERVEN — CASE C-371/92

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 19 January 1994 *

Mr President, ings between the Greek State and Ellinika Members of the Court, Dimitriaka A. E., a public limited company.

The relevant legislation

1. Like KYDEP v Council and Commis- 1 sion, which is still pending before the Court and on which I delivered an Opinion on 15 September 1993, the questions referred for a preliminary ruling in this case are also concerned with the consequences for a Greek undertaking of the nuclear accident 2. Article 15 of Regulation No 2730/79, as which took place at Chernobyl on 26 April replaced by Article 13 of Regulation 1986. The Dioikitiko Efetio Athinon (here­ No 3665/87, reads as follows: inafter referred to as 'the Administrative Court of Appeal, Athens') has asked the Court to give a preliminary ruling (a) on the validity and legal nature of a telex message sent by the Commission to the Permanent Representatives of the Member States on 24 July 1986 and (b) on the interpretation to be given to Commission Regulations (EEC) 2 Nos 2730/79 and 3665/87 3 laying down 'No [export] refund shall be granted on common detailed rules for the application of products which are not of sound and fair the system of export refunds on agricultural marketable quality, or on products intended 4 products. The questions arose in proceed­ for human consumption whose characteris­ tics or condition exclude or substantially impair their use for that purpose.'

2. They shall be regarded as sound, fair and of marketable quality if they are of the typical colour of the cereal in ques­ tion, free from abnormal smell and live pests (including mites) at every stage of 4. On 12 May 1986, the Council adopted their development and if they meet the Regulation (EEC) No 1388/86 suspending minimum quality requirements set out until 31 May 1986 the import of a number of in the Annex hereto.' agricultural products (with the exception, once again, of wheat) from seven eastern 8 European countries. The day before that period of suspension expired, namely 30 May 1986, the Council adopted Regula­ tion (EEC) No 1707/86'on the conditions governing imports of agricultural products 3. Immediately after the nuclear accident at originating in third countries following the Chernobyl on 26 April 1986 which contami­ accident at the Chernobyl nuclear power sta­ nated a large quantity of agricultural prod­ 9 tion'. Unlike the previous measures, Regu­ ucts with radioactivity, the Commission and lation No 1707/86 also applied to wheat and the Council took a number of provisional took account of the degree of radioactive 6 measures. Thus, on 6 May 1986, the Com­ contamination of the agricultural products mission addressed Recommendation concerned. Rather than imposing a complete 86/156/EEC to the Member States coor­ dinating the measures which the Member States had already taken or were proposing to take in order to prohibit agricultural 7 — Commission Recommendation 86/156/EEC of 6 May 1986 addressed to the Member States concerning the coordination products contaminated by radioactivity from of national measures taken in respect of agricultural products as result of radioactive fallout from the Soviet Union, OJ 1986 L 118, p. 28. 8 — Council Regulation (EEC) No 1388/86 of 12 May 1986 on the suspension of the import of certain agricultural products 5 — Commission Regulation (EEC) No 1569/77 of 11 July 1977 originating in certain third countries, OJ 1986 L 127, p . 1. fixing the procedure and conditions for the taking over of The products in question originated in Bulgaria, Czechoslo­ cereals by intervention agencies, OJ 1977 L 174, p. 15. vakia, Hungary, Poland, Romania, the Soviet Union and Yugoslavia. 6 — For a fuller account of those measures I would refer to my Opinion in KYDEP v Commission and Council, C-146/91, 9 — OJ 1986 L 146, p . 88. The detailed implementing rules were judgment of 15 September 1994, not yet published in the laid down by Commission Regulation (EEC) No 1762/86 ECR, sections 4 to 11. of 5 June 1986, OJ 1986 L 152, p. 41.

10 — By Council Regulation (EEC) No 3020/86 of 30 Septem­ — 370 Bq/kg for milk falling within head­ ber 1986 extending Regulation (EEC) No 1707/86 on the ings No 04.01 and No 04.02 of the Com­ conditions governing imports of agricultural products orig­ inating in third countries following the accident at the mon Customs Tariff and for foodstuffs Chernobyl nuclear power-station, OJ 1986 L 280, p . 79. intended for the special feeding of infants 11 — By Council Regulation (EEC) No 624/87 of 27 Febru­ ary 1987 extending Regulation (EEC) No 1707/86 on the during the first four to six months of conditions governing imports of agricultural products orig­ inating in third countries following the accident at the life ...; Chernobyl nuclear power station, OJ 1987 L 58, p . 101 (corrigendum in OJ 1987 L 62, p . 31). 12 — Council Regulation (EEC) No 3955/87 of 22 Decem­ ber 1987 on the conditions governing imports of agricul­ tural products originating in third countries following the accident at the Chernobyl nuclear power-station, OJ 1987 L 371, p . 14. 13 — See Article 7. The regulation entered into force — 600 Bq/kg for all other products con­ on 30 December 1987, that is to say, on the date when it was published in the Official Journal (Article 8). cerned.' 14 — OJ 1987 L 371, p . 11.

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icle 2 of the regulation provides, inter alia, which was at issue in KYDEP — to the Per­ that: manent Representatives of the Member States on 24 July 1986:

'1 . In the event of the Commission receiving ... official information on accidents or on any other case of radiological emergency, sub­ The attention of Member States is drawn to stantiating that the maximum permissible the fact that under Community provisions levels in the Annex are likely to be reached only products of sound merchantable quality or have been reached, it will immediately containing no matter likely to be harmful to adopt, if the circumstances so require, a Regu­ the health of humans may be submitted for lation rendering applicable those maximum intervention. Furthermore, no agricultural permissible levels. product which as a result of its characteris­ tics cannot be disposed of may be purchased for intervention.

fore not be taken into account by the force when the export transactions at issue EAGGF . ' 15 took place, nevertheless has considerable prominence in the parties' observations. Commission Regulation (EEC) No 2751/88 17 of 2 September 1988 was adopted pursuant to Article 8 of Council Regulation (EEC) 18 No 2727/75 of 29 October 1975, under 7. The principle applied in the telex message which special intervention measures may be that no export refunds can be granted where taken where this is required by the situation the maximum permitted levels of 370 on the market in some parts of the Commu­ and 600 Bq/kg applicable to imports are nity. It was by means of such a special mea­ exceeded, was confirmed by Regulation sure that Regulation No 2751/88 authorized (EEC) No 3494/88, which was adopted by 16 the grant of export refunds in respect the Commission on 9 November 1988 of 300 000 tonnes of durum wheat to be (that is to say, after the wheat at issue had exported from Greece. In order to qualify been exported). Article 3 of that regulation for refunds, 40% of the wheat had to come added the following paragraph to Article 13 from the 1986 Greek harvest, the harvest of Regulation No 3665/87 (cited in section 2, which was the most badly affected by the above): nuclear accident at Chernobyl, and at least 30% had to consist of wheat from par­ ticular stores in Greece.

'No refunds shall be granted if the products display radioactivity in excess of the maxi­ mum levels permitted under Community regulations. The levels applicable to products of Community origin contaminated as a Background to the case result of the accident at the Chernobyl nuclear power-station shall, irrespective of their origins, be those fixed in Article 3 of Council Regulation (EEC) No 3955/87 ...'.

ried out by an agricultural expert (the find­ of agricultural products originating in third ings of which are set out on the back of two countries. This appears from analyses carried of the declaration forms) and an analysis car­ out by the Landwirtschaftskammer Weser- ried out by a scientific institute, the Greek Ems using samples taken by the British wheat showed a level of radioactive contam­ inspection company Caleb Brett in the holds ination of 1078 Bq/kg. of the ship at the request of Ellinika Dimitri­ aka. Without contesting the analyses carried out by the British company, the Greek authorities observed that they were not present when the checks were carried out and were therefore not in a position to verify what cereals were analysed or the way in which the checks were organized. Ellinika Dimitriaka realized that the Greek wheat exceeded the radioactivity standards laid down by the Commission in its telex message of 24 July 1986 and shipped in from France wheat uncontaminated or only slightly contaminated by radioactivity. The French wheat was stored in separate silos. The Greek and French wheat was loaded separately (but alternately). In all, four dif­ ferent customs declarations were drawn up and the customs issued four separate loading authorizations. 19 11. After receiving a notice from the Greek Ministry for Foreign Affairs dated 6 Febru­ ary 1989 containing a recommendation to that effect, the competent Greek authorities refused to grant export refunds to Ellinika Dimitriaka for the 25 000 tonnes of Greek wheat whose radioactivity exceeded the stan­ dard of 600 Bq/kg at the time when the ves­ 10. The Greek and French consignments sel was loaded. They took the view that the were then mixed on the vessel. It seems to standard of 600 Bq/kg which was applicable have been found as a fact that the average to imports from third countries should be level of radioactivity of the total quantity of applied analogously to exports from the wheat shipped was 470 Bq/kg and therefore Community to third countries, and consid­ below the tolerance threshold of 600 Bq/kg ered that that view was corroborated by the laid down by the Council in Regulation aforementioned telex message of 24 July No 1707/86 for imports into the Community 1986 from the Commission. Since Ellinika Dimitriaka did not lodge one but four sepa­ rate customs declarations, the Greek author­ 19 — According to the national court's order, 14 000 tonnes of ities argue that the consignments of Greek Greek wheat was loaded between 12 and 18 April 1988 and French wheat ought to have been analy­ (Declaration No 502/88); 7 000 tonnes of French wheat was loaded between 18 and 20 April 1988 (Declaration sed separately: the French wheat satisfied the No 503/88); a mixture of 11 000 tonnes of Greek wheat and 17 500 tonnes of French wheat was loaded between applicable standards and therefore qualified 20 April and 5 May 1988 (Declaration No 536/88), fol­ for export refunds, whilst the Greek wheat lowed, finally, by 5 500 tonnes of French wheat (Declara­ tion No 643/88). The requisite loading authorizations were did not satisfy those standards and therefore dated 18 April, 20 April, 6 May and 9 May 1988 respec­ tively. could not qualify for export refunds.

In order to answer that question, I shall draw a distinction between the binding nature of the telex message of 24 July 1986 and its validity. 13. After exhausting all administrative pro­ cedures, Ellinika Dimitriaka brought an action in the Administrative Court of First Instance, Athens, which ordered the Greek State to pay it the export refunds which it sought and to release the sureties which it had given in respect of the exportation of the 15. All the parties (namely the Greek State, wheat at issue. The Greek State appealed Ellinika Dimitriaka and the Commission) against that judgment to the Administrative agree that the telex message is not binding. In Court of Appeal, Athens, which requested their written observations, they stress that the Court to give a preliminary ruling on the telex message is 'informal', 'interpre­ four questions. tative' or 'explanatory' and therefore indicate that it was not capable of constituting a source of obligations for the Member States (or a fortiori for persons such as Ellinika 20 — Council Directive 81/177/EEC of 24 February 1981 on the Dimitriaka and the party with which it con­ harmonization of procedures for the export of Community goods, OJ 1981 L 83, p. 40. cluded a contract in South Korea). That view

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is also taken by thenational court, which for paying export refunds. The Court held stated that the telex message had to be that the application was inadmissible in par­ 'regarded as a declaration of the Commission ticular on the following ground: interpreting the provisions of Regulation No 2730/79, and in particular Article 15'.

Ellinika Dimitriaka puts forward two argu­ ments against the validity of the telex mes­ sage. In the first place, it bases itself on the Moreover, this is clear from that which the annex to Regulation No 3954/87 (see sec­ Court has consistently held since the judg­ tion 5, above), which, under the tide 'Maxi­ 21 ment of 27 March 1980 in Sucrimex. That mum permitted levels for foodstuffs and judgment was concerned with a claim for the feedingstuffs', lays down a level of radiation annulment of a telex (likewise signed by the Director-General for Agriculture at the time) which the Commission had sent on 3 July 1979 to a French body responsible 22 — My emphasis. Confirmed by the judgments in Case 217/81 Interagra [1982] ECR 2233, paragraph 8, and in Case 109/83 Eurico [1984] ECR 3581, paragraph 20. See also the orders in Case 151/88 Italy v Commission [1989] ECR 1255, paragraph 22, in Case C-50/90 Sunzest [1991] ECR I-2917, paragraph 13, and in Joined Cases C-66/91 21 — Case 133/79 Sucrimex and Westzucker v Commission [1980] and C-66/91 R Emerald Meats [1991] ECR I-1143, para­ graph 30. ECR 1299.

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of 1250 Bq/kg. Ellinika Dimitriaka consid­ Commission is obliged to apply in the ers that if such levels of radiation are framework of the annual approval of the regarded as permissible within the Commu­ 24 EAGGF accounts. nity, it is unreasonable that, in its telex mes­ sage of 24 July 1986, the Commission should require a maximum permitted level of 600 Bq/kg to be complied with for the exportation of Community products to third countries. Ellinika Dimitriaka goes on to Moreover, the contested telex report ... seems argue that, by sending the telex message of to me to be an acceptable interpretation of 24 July 1986, the Commission exceeded its the provisions contained or referred to powers, on the ground that only an express therein'. 25

23 — Cf. the item 'all other nuclides of half-life greater than 10 24 — See Article 5(2)(b) of Regulation (EEC) No 729/70 of the days, notably Cs-134, Cs-137' under the heading 'other Council of 21 April 1970 on the financing of the common foodstuffs except minor foodstuffs*. The other items falling agricultural policy (OJ, English Special Edition, 1970 (I), under that heading set out maximum permitted levels of p . 218). between 80 and 2000 Bq/kg. 25 — See section 20 of the Opinion.

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19. As for Ellinika Dimitriaka's second argument by which it claims that the Com­ mission was not empowered to send the 27 telex message of 24 July 1986, I would make the following observations. Once it is admitted, as all the parties (including Ellinika The national court's second question. Were Dimitriaka) do, that the telex message in the Member States justified in applying to question imposed no obligation on the export transactions by analogy the rules Member States and simply gave an interpre­ laid down for imports? tation — which was in no way binding — of legal rules whose validity is not contested, there is no reason, in my view, to consider that the Commission had no such power. On the contrary, it was open to the Commission, as I have already observed, to provide, in the context of its administrative collaboration with the Member States, its interpretation as 21. According to the reply which I suggest to how the rules on EAGGF financing should be given to the national court's first question, the Member States were not bound by the Commission's telex message 26 — Under Article 5 of Regulation No 3954/87, the maximum of 24 July 1986 and were therefore not under permitted levels laid down in the annex, including the threshold of 1250 kg/Bq, may be revised or supplemented an obligation automatically to declare that at the request of a Member State or the Commission. the maximum levels of radioactivity for 27 — Ellinika Dimitriaka argues at the same time that the Com­ mission had no competence to adopt Regulation import transactions were applicable to No 3494/88. Since none of the questions referred for a pre­ exports. What the national court seeks to liminary ruling relate to that regulation, which, moreover, was not in force at the time when the export transactions at establish by its second question is whether issue were carried out, I shall not consider this argument further. the Member States were entitled to apply to

'In the absence of any express provision, do the Commission or the competent organiza­ tions of the Member States have the power to interpret Article 15 of Regulation (EEC) No 2730/79 (now Article 13 of Regulation No 3665/87), which was applicable at the material time, and to subject exports to sim­ This means that, pending binding Commu­ ilar rules on what constitutes goods which nity rules also covering export transactions, are sound, fair and of marketable quality as it was for the Member States themselves — apply to imports, or, conversely, with regard as the Commission and the Greek Govern­ to refunds, in order for the national organi­ ment rightly observe — to lay down the zation to decide that the exporter is not en­ maximum tolerances for the grant of refunds titled to Community aid ... must there be a in respect of exports of agricultural products binding Community provision defining pre­ 28 to third countries. In the absence of bind­ cisely the circumstances in which refunds ing Community rules, it is for the Member cannot be granted? More specifically, in order States and — as the Court has consistently for exports of goods contaminated with radi­ held (see section 15) — not for the Commis­ ation above the level laid down for imports sion to lay down a binding definition of of the same goods to be refused refunds, was what is to be understood by 'sound and fair the adoption of Regulation No 3494/88 marketable quality' within the meaning of essential?' (my emphasis) Article 15 of Regulation No 2730/79 and Article 13 of Regulation No 3665/87 which are mentioned in the national court's ques­ tion.

munity could be applied by analogy to by analogy, to exports of agricultural prod­ exports of agricultural products to third ucts to third countries the rules applicable to countries seems more than reasonable to me, imports of such products from third coun­ also from the point of view of its substance. tries which are set out in Article 15 of Regu­ At the time when the Greek authorities had lation No 2730/79 and in Article 13 of Regu­ to take a decision, it was clear that identical lation No 3665/87. treatment could be applied to exports and to products (imported or not) intended for con­ sumption on the domestic market, since the principle of such equal treatment was already embodied in section 2 of Recommendation 86/156/EEC of 6 May 1986 (see section 3, The national court's fourth question. Could above) and in the Commission's telex mes­ the original declarations be rectified after sage of 24 July 1986, which I have already the event? discussed (in other words, that principle was already set out in the interpretation which the Commission had given of the relevant provisions). Moreover, that principle was subsequently confirmed, after the export transactions in question had been carried out, by Regulation No 3494/88 of 9 Novem­ ber 1988 (see section 7, above). 25. For reasons of logic I shall discuss the fourth question before I tackle the third. If it is placed in the context of the questions as a whole, the national court's fourth question essentially asks whether a public authority, such as the Greek Government, can rely on Article 7 of Directive 81/177/EEC in order In any event, is that interpretation not rea­ to refuse to replace the four original customs sonable? I cannot see how a Member State declarations by a single document in circum­ could authorize the exportation (and hence stances such as those at issue. consumption on another market) of agricul­ tural products which were not considered fit for consumption on its own market.

3. Any other act having the same effect in law as the acceptance of the export declara­ tion shall be deemed to be equivalent to such 'Do the provisions of Article 3 of Regulation acceptance. (EEC) No 3665/87 relate exclusively to the calculation of the export refunds and thus not affect Article 13 of Regulation (EEC) No 3665/87, according to which the afore­ mentioned Community aid is not granted 4. The day of export shall he used to estab- when the goods being exported are unsound, lish the quantity , nature and characteristics with the consequence that it is unnecessary of the product exported. to change the relevant declarations?'

5. The document used for export to enable products to qualify for a refund must include all information necessary for the calculation of the amount of the refund, and in particu­ Article 3 of Regulation No 3665/87 appears lar: under the heading 'General Provisions' and provides as follows:

'1 . The day of export means the date on If the document mentioned in this paragraph which the customs authority accepts the is the export declaration, this document must export declaration in which it is stated that a also include these references and the refer­ refund will be applied for. ence "refund code".

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29. Article 7 of Directive 81/177/EEC reads as follows:

'1 . The declarant shall, at his request, be I can therefore only reply to the fourth ques­ authorized to correct declarations accepted tion as it is formulated by the national court by the customs authority ... subject to the that Article 3 of Regulation No 3665/87 also following: relates to Article 13 of that regulation, and that hence it cannot be stated that para­ graph 4 of Article 3 is irrelevant to the assessment of the 'sound and fair marketable quality' of the products concerned on which Article 13 makes the grant of refunds condi­ (a) the correction shall be requested before tional. the goods are released from the customs

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office or place designated for that purpose, 30. The view taken by the Greek Govern- unless the request relates to details which the ment on the application of that provision in customs authority can check as being correct this case is sufficiently well-known: it main­ without the goods being present; tains that the provision precludes the correc­ tion of the customs declarations suggested by the Commission, in particular on the ground that Ellinika Dimitriaka did not request the correction to be made 'before the goods [were] released from the customs office or place designated for that purpose' (as required by Article 7(1)(a)).

(b) the correction may no longer be allowed where the request is made after the customs authority has informed the declarant that it intends to examine the goods or that it has itself established that the particulars in ques­ tion are incorrect; According to Ellinika Dimitriaka, Article 7 of Directive 81/177/EEC authorizes declara­ tions to be corrected under Article 7(1)(a) so long as the correction does not entail changes relating to the goods themselves. No more could the Greek authorities rely on the provisions of Article 7(1)(b) in order to refuse to correct the declarations. They could have done so only if they contested the accu­ (c) the correction shall not result in the racy of the statements made by Ellinika application of the declaration to goods other Dimitriaka in the declarations. than those to which it originally related.

It is common ground in this case that Ellin- ika Dimitriaka did not request the declara­ tions to be corrected 'before the goods [were] released from the customs office or The Commission goes on to argue that such place designated for that purpose'. Conse­ a 'mathematical' calculation would comply quently, the requirement set out in Art­ with the provisions of Regulation icle 7(1)(a) of Directive 81/177/EEC could No 2751/88 — which generalized the rules be satisfied only if the request for the by virtue of which contaminated Greek declaration to be corrected 'relate[d] to wheat mixed with uncontaminated wheat details which the customs authority [could] could be exported to third countries (see sec­ check as being correct without the goods tion 8, above) — with the result that follow­ being present'. ing the entry into force of that regulation on 4 September 1988 there would be no objection to Ellinika Dimitriaka's asserting its right to the refunds which are now being refused it because the material facts occurred before that date. 32. The Commission seems to consider that that was the case. Its representative stated at the hearing that the radioactivity of a mix­ ture of contaminated Greek wheat and uncontaminated or less contaminated wheat could be determined purely 'mathematic­ 33. I am unable to see what the basis is for ally'. In practice, the radioactivity of such a the Commission's statement at the hearing. mixture is invariably deemed to be the aver­ On the contrary, Article 6(3) of Regulation age radioactivity of each of the consignments No 2751/88 to which it refers (and which of wheat which were mixed, regardless as to was not applicable at the material time) how and to what extent a mixture was seems to me to preclude any purely mathe­ achieved. matical check of a mixture of radioactive and uncontaminated wheat. The first and second paragraphs of Article 6(3) provide as follows:

The competent agency shall have an analysis made of the loaded goods and shall hold at the Commission's disposal an additional sample from each consignment, taken and sealed in the presence of the tenderer or his 34. Regulation No 2751/88, which entered representative.' into force after the material time, therefore affords no argument for the mathematical calculation of the degree of contamination of mixed consignments of wheat. On the con­ trary, that regulation also seems to require the degree of contamination to be calculated on the basis of an analysis commissioned by the competent national authorities. This also It is clear from that provision that the appears in my view to be the implication of national authorities are required to take the words 'details which the customs author­ active steps with regard to the analysis of the ity can check as being correct without the loaded goods: they have to order an analysis goods being present' in Article 7(1)(a) of to be carried out in presence of the tenderer Directive 81/177/EEC, which was applicable or his representative in order to check at the material time. Indeed, if the degree of whether the quality standards for interven­ contamination of mixed consignments of tion — and hence also the standards applica­ wheat may not be calculated mathematically, ble with regard to radioactive contamina­ the correctness of the calculation carried out 29 tion — are met; they are also to hold an by the customs without the goods being additional sample at the Commission's dis­ present can be checked only on the basis of posal. Since the regulation requires the goods an analysis carried out under their supervi­ to be analysed, there can be no question of a sion by an independent institution. purely 'mathematical' calculation of the radioactivity of a mixture of cereals. Besides, this seems to me to be perfectly normal: if the Commission were to allow a mixture of different consignments of wheat

The national court's third question. Is the payment of refunds nevertheless justified in this case, even if the original declarations are not replaced? 36. After the Greek authorities informed Ellinika Dimitriaka that, in view of Art­ icle 7(1) of Directive 81/177/EEC, they con­ sidered that it was impossible to replace its four original customs declarations by a single document, the Commission informed them 35. By its third question — which has par­ by letter dated 22 October 1990 (see sec­ ticular significance in view of my answer to tion 12, above) that, on closer consideration, the fourth question (see section 25, above) — such replacement did not, in its view, seem the national court seeks to establish whether necessary in order to pay export refunds. factors other than the customs declarations Moreover, this is the view which it has are to be taken into consideration in order to argued before the Court by reference to the determine whether, in circumstances such as 'particular features of the export transactions those at issue, export refunds should never­ in question'. theless be paid. The question reads as fol­ lows:

ality form part of the Community legal not afford the same degree of legal protec­ order. Failure to comply with them consti­ tion in the two systems. The Court's judg­ 31 tutes an infringement of the Treaty. This is ment of 21 September 1983 in the Deutsche also true of the principle of proportionality, Milchkontor case affords an illustration of which prohibits, inter alia, the imposition on 34 this. That judgment was concerned with a commercial undertakings of burdens greater German legal provision which, on the basis than those which are required to achieve the of the principles of legitimate expectations aim which the (Community or national) and legal certainty, threatened to make it authorities are to accomplish, such as in this impossible to recover amounts of Commu­ 32 case the protection of public health. Those nity aid unduly paid. After finding that the principles may therefore in principle result in principles of legitimate expectations and legal Ellinika Dimitriaka's also being entitled to certainty are part both of the Community export refunds for the Greek cereals, even legal order and of the legal systems of the though no prior correction was made of the Member States, the Court ruled as follows: original customs declarations.

38. As the Court has consistently held, in 'Community law does not prevent national proceedings for a preliminary ruling under law from having regard, in excluding the Article 177 of the EEC Treaty, it is for the recovery of unduly-paid aids, to such con­ national court, and not the Court of Justice, siderations as the protection of legitimate to apply Community law and the general expectations ..., provided however that the principles forming an integral part of it to all conditions laid down are the same as for the 33 recovery of purely national financial benefits the actual facts of the case before it. In so doing, it may happen that the national court and the interests of the Community are finds that the self-same general principle is taken fully into account' (paragraph 33). recognized both in the Community legal order and in its own legal system, but does

In the instant case, it is, in my view, worth Ellinika Dimitriaka did not act in good faith. emphasizing that the converse is also true. In Secondly, I would point out that one of the other words, if it should appear that the four declarations originally lodged by Ellin­ principle of legitimate expectations and/or ika Dimitriaka related to a mixed consign­ the principle of proportionality as enshrined ment of Greek and French wheat, and that in the Community legal order afford an that declaration was accepted without diffi­ undertaking such as Ellinika Dimitriaka legal culty by the Greek customs authorities, protection exceeding that afforded it under without their having analysed the radioactiv­ national law, the national court should take ity of the mixture of wheat in question. It account of those principles of Community might moreover appear from the fact that the law in full where, as in this case, it is called Greek customs authorities accepted, without upon to assess a measure taken by a national entering any reservation or requesting an authority on the basis of and pursuant to analysis, the declaration relating to the con­ 35 Community law. signment which Ellinika Dimitriaka mixed on its own initiative before the day on which it was exported that they implicitly renounced requesting all the consignments to be analysed, a fortiori since, in view of the origin of the wheat and the link between the four separate declarations relating to them, the Greek authorities could in fact have real­ 40. Although, under the division of respon­ ized that Ellinika Dimitriaka intended to mix sibilities resulting from Article 177 of the EC the three other consignments as well, on the Treaty, it is not for the Court to review the vessel. consistency with Community law of the Greek authorities' refusal to grant export refunds to Ellinika Dimitriaka, it may never­ theless provide the national court with every information of potential use to it in carrying out such review. In that connection, I should like to point to a number of circumstances 41. The prindple of proportionality is specific to the instant case. another aspect of Community law which may be useful to the national court.

'Whereas production of durum wheat in Greece exceeds that country's requirements 42. In view of the foregoing, I consider that and substantial stocks still remain from pre­ it is for the national court to consider — vious harvests, including that of 1986; while taking fully into account the general Community principles of legitimate expecta­ tions and proportionality — whether the Greek authorities were bound to pay refunds to Ellinika Dimitriaka in respect of the con­ signments of Greek wheat which it exported, even though the original customs declara­ tions were not corrected after the event.

Whereas, unless adequate measures are 36 — The quotations are from the first and fifth recitals in the taken, the situation on the Greek market preamble to Regulation No 2751/88. 37 — In my view, that obligation is enshrined in Article 5 of the may be expected to deteriorate, possibly giv­ EC Treaty and is more explicitly defined with regard to fraud in Article 209a of the EC Treaty and in indent 5 of ing rise to a serious storage problem ...; Article K. 1 of theTreaty on European Union.

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Conclusion

43. To conclude, I propose that the Court should answer the questions referred to the Court for a preliminary ruling by the Administrative Court of Appeal, Athens, in the following terms: