C-233/96

O P I N I O N OF MR ALBER — CASE C-233/96

OPINION OF ADVOCATE GENERAL ALBER delivered on 24 March 1998 *

A — Introduction perform his contract with the intervention agency as to 85% or 9 5 % , he loses in whole or in part the security deposited in respect of the total amount. 4

1. The present case concerns a flat-rate reduc- tion in E A G G F 1 financing contested by the applicant. The defendant Commission justi- fies that reduction by pointing to the fact 2. If, however, the tenderer splits his original that, in the context of intervention purchasing, tender into several smaller ones which are the national authorities had accepted unlawful made in the name of nominees, the risk of multiple tenders (group tenders or intercon- losing the security payment is reduced. If he nected tenders). 2 These may be of a specula- is unable to deliver the full quantity tendered tive nature. If, for example, very large quanti- for, in the case of several smaller tenders he ties of beef and veal are offered for sale into is at least in a position to honour certain of intervention, it becomes necessary to reduce them in such a way that he does not lose the those quantities by application of a coeffi- security payment. It is true that in respect of cient. 3 Since the tenderers endeavour to con- the remaining tenders which he is then no tinue to sell the whole of their meat into longer in a position to honour the security intervention inflated tenders are lodged for payment •will be retained. However, that secu- speculative purposes. If a tenderer speculates rity is not calculated on the total amount of that a specific reduction coefficient will be all the tenders instigated by him but only on laid down, he offers a correspondingly higher the smaller amount in each case. The amount quantity for sale into intervention. If it then of the security lost is thus smaller and is often turns out that the coefficient laid down is not exceeded by the profit achieved. as high as the tenderer assumed, the tenderer must deliver into intervention more meat than he actually has available. If he is unable to

6. By this application the Kingdom of Den- mark seeks the annulment of the Commis- 5. Speculative tenders which, as demonstrated, sion decision disallowing, in respect of the are favoured by the lodging of multiple ten- Kingdom of Denmark's expenditure for 1991 ders make it difficult, according to the Com- and 1992 incurred in the buying-in of beef, mission, to operate intervention successfully. the sum of DKK 26 867 909 (hereinafter 'the Since more meat is offered than is actually on Decision'). 9 The disallowance of that expen- the market, buying-in prices and quantities diture is contained in Annex I to the Deci- determined on the basis of tenders received sion. The amount disallowed corresponds to can no longer be established in accordance a flat-rate correction of 2 % of 1991 and 1992 with the actual market situation. Speculative expenditure. tenders thus prevent the Commission from obtaining a precise overview of the market situation. For that reason it may almost cer- tainly be presumed that, as a result of the speculative tenders and the multiple tenders favouring them, more meat is bought in by the intervention agencies at higher prices. In that connection it must also be borne in mind 7. In its Summary Reports 10 the Commis- sion justifies that reduction on the ground that the Kingdom of Denmark did not check 5 — Fourth recital in the preamble to and Article 5 of Council whether multiple tenders had been submitted. Regulation (EEC) N o 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (OJ, English Spe- cial Edition 1968 (I), p. 187). 6 — Cited in footnote 3. 7 — Third recital in the preamble to and Article 7 et seq. of Regu- 9 — Commission Decision 96/311/EC of 10 April 1996 on the lation N o 859/89. clearance of the accounts presented by the Member States in 8 — Second recital in the preamble to Council Regulation (EEC) respect of the expenditure for 1992 of the Guarantee Section N o 571/89 of 2 March 1989 amending Regulation (EEC) N o of the European Agricultural Guidance and Guarantee Fund 805/68 on the common organisation of the market in beef and and in respect of certain expenditure for 1993 (OJ 1996 veal, repealing Regulation (EEC) N o 1302/73 and extending L 117, p. 19). Regulation (EEC) N o 4132/88 (OJ 1989 L 61, p. 43). 10 — Document W 3 2 0 / 9 4 and Document VI/6355/95.

13. The distinction between the concepts of 'tenderer' and 'interested party' is, in the Commission's view, of significance in this 10. In the applicant's view, however, all the connection. According to the Commission, it rules concerning intervention were observed. follows from the difference in -wording that It made sure that each natural or legal person interested parties are not to be equated with registered as a company did not submit more tenderers. 'Interested parties' are not only than one tender per category in response to those persons who lodged tenders in the each invitation to tender. The checks carried course of their economic activities. That con- out by the Danish authorities involved ascer- cept embraces a much wider class of persons. taining whether the tender came from a com- It is not therefore only the individual ten- pany registered with them. There was no derer, that is to say the person who actually reason at that time to carry out more tho- lodges the tender, who is prohibited from rough checks. lodging more than one tender. The prohibi- tion covers all persons tendering in respect of the same quantity of meat.

11. The provision which underlies this dis- 11 — Emphasis added. pute is contained in Article 9 of Regulation 12 — Emphasis added.

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Where it is established that a tenderer has submitted more than one tender, all the ten- 15. The fact that this provision covers other ders from that tenderer shall be deemed inad- persons than the tenderer is, the applicant missible.' submits, apparent only on a reading of Article 11(3) of Commission Regulation (EEC) N o 2456/93 of 1 September 1993 laying down detailed rules for the application of Regula- tion N o 805/68 as regards the general and special intervention measures for beef, 13which was not yet in force at the material time. That provision is as follows: 16. Since the applicant, unlike the Commis- sion, was of the opinion that the last phrase of Article 9(2) was fully complied with in the context of the tendering procedure operated by it, it ultimately referred the matter to the Conciliation Body. 14 According to the appli- cant, the Conciliation Body concluded that it could not state with any certainty that the conduct of the Member States was in breach of the regulation. The Conciliation Body ruled that in any event it had been considered 'Interested parties may submit only one tender per category in response to each invitation to tender. 14 — Established by Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of the clearance of the accounts of the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Sec- 13 — OJ 1993 L 225, p. 4. tion (OJ 1994 L 182, p. 45).

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necessary to clarify the rules contained in The Commission contended that the Court Regulation N o 2456/93 and that the Com- should: mission had failed to react before 1993.

governs the number of tenders. Nothing is existence of an infringement of the rules gov- said concerning the characteristics of the ten- erning the common organisation of the agri- derers. The number of tenders was checked cultural market. 17 in Denmark. The national authority verified whether each individual tenderer was a reg- istered legal person. Whether the individual undertakings which submitted tenders may have belonged to the same group of under- takings was not verified in Denmark since 22. Moreover, in regard to the requirements there was no necessity and also no legal basis which the formulation of provisions must for doing so. satisfy, the Court has held: 'Since a rule whose breach inevitably entails financial conse- quences must be sufficiently clear and precise, the Commission was not entitled to rely on the terms of subheading ... as a basis for imposing, at the time of the clearance of the E A G G F accounts, an interpretation which was not dictated by the normal meaning of the words used'. 18 20. The applicant states that, in accordance with the Court's case-law, it is for the Com- mission, in the context of the clearance of the accounts of the EAGGF, to show that a Member State had contravened Community rules. The Commission, as demonstrated by 23. Accordingly, it must be examined whether the applicant, was not able to adduce such the terms in which the last phrase of Article proof. Moreover, the applicant points out that 9(2) of Regulation N o 859/89 is couched sat- rules which may have financial consequences isfies these requirements and whether they for the Member States must be clearly and allow of a construction of the kind placed on precisely formulated. them by the Commission. In that connection, it would appear appropriate to examine first the manner in which the Commission seeks to interpret the last phrase of Article 9(2). The pleadings mainly speak of 'multiple' ten- ders. Those cannot be tenders submitted by one and the same tenderer under one name, for such tenders are not lawful in Denmark either. As it is also clear from the pleadings, 21. According to the case-law of the Court, the Commission is also not challenging every 'only refunds granted and intervention under- kind of connection between the individual taken in accordance with the Community rules within the framework of the common organisation of agricultural markets are to be financed by the EAGGF'. 16 In that connec- 17 — Netherlands v Commission (cited in footnote 16, paragraph tion, it is for the Commission to prove the 18, with further references); Case C-281/89 Italy v Com- mission [1991] ECR I-347, paragraph 19, with further refer- ences; Case 347/85 United Kingdom v Commission [1988] ECR 1749, p. 16; judgment in Case C-55/91 Italy v Com- mission [1993] ECR I-4813, paragraph 13, with further refer- ences. 16 — Case C-48/91Netherlands v Commission [1993] ECR I-5611, 18 — Case 349/85 Denmark v Commission [1988] ECR 169, para- paragraphs 13 and 14, with further references. graph 16.

24. The Commission points out that, according to the Court's case-law, a provision is not merely to be construed literally but also in accordance with its meaning and pur- 27. In the Commission's view, this conclu- pose. 19 Accordingly, the Commission con- sion also follows from the wording. It should tends that the provision at issue in these pro- be said on this point that a difference in ceedings would be deprived of its purpose if wording as between paragraphs 1 and 2 of it were possible to submit several tenders via Article 9 could certainly point to a difference nominees, thus circumventing the prohibitory in meaning. It could be inferred from this provision. that it is not sufficient to check whether the person who in actual fact submits the tender only submits a single one, that is to say, whether in each case an independent (legal) person participates in the procedure. Thus the term 'interested party' could be under- stood as meaning a person interested in selling 25. The intervention scheme, the Commis- his meat into intervention. As has been seen, sion contends, is jeopardised, as has been that person does not necessarily have to be demonstrated, by the practice in regard to the same person as the tenderer, that is to say, intervention buying-in in Denmark. By the the person who actually submits the tender. buying-in of excessive quantities greater costs If, for example, the meat is offered via nomi- arise, it is submitted, than are necessary in nees, in that case there is only one interested order to support the market. Moreover, party but several tenderers. But if one looks equality of access for all interested parties at the way in which those two concepts are required under Article 6(6) of Regulation used in other regulations dealing with inter- vention measures for beef and veal, it may be seen that the abovementioned distinction is 19 — Case C-283/91 Contarini [1992] ECR I-6359, paragraph 14, not always adhered to. Thus, for example, the and Joined Cases C-296/93 and C-307/93 France and Ire- land v Commission [1996] ECR I-795, paragraph 21. first recital in the preamble to Regulation

31. In the applicant's view that regulation 28. Thus, no further conclusions may be only governs the number of tenders which drawn from the distinction between 'tenderer' the tenderer may submit. That number was and 'interested party' in Article 9. further reduced because the administration had been overwhelmed by the number of tenders. The purpose of Regulation N o 2271/90 was therefore, according to the appli- cant, to lighten the administration's workload by reducing the number of tenders. This pur- pose 'was achieved in Denmark. The require- 29. However, it is more instructive to have ments of the 'new' version of the last phrase regard to the provisions which preceded those of Article 9(2) of Regulation N o 859/89 were at issue in the present proceedings. Thus, in thus met. 1990 it was made possible to submit several tenders at different prices. Under Regulation (EEC) N o 1282/90 22 the last phrase of Article 9(2) received the following formulation:

32. What is more, however, it is clear that 'They may submit more than one tender, at after repeal of the provision in Regulation N o different prices, for each category in response 1282/90 the tenderer may no longer submit to each invitation to tender.' several tenders in respect of the same quan- tity of meat. The meaning and purpose of the provision here at issue in the last phrase of Article 9(2) is thus that several tenders may 20 — Commission Regulation of 1 August 1990 amending Regula- not be submitted in respect of a specific tion No 859/89 (OJ 1990 L 204, p. 45). 21 — This distinction is also reflected in the English version, which quantity of meat. That provision would speaks of 'interested parties' and 'tenderer'. become meaningless if it could readily be cir- 22 — Commission Regulation of 15 May 1990 amending Regula- tion No 859/89 (OJ 1990 L 126, p. 31). cumvented by recourse to nominees.

34. Moreover, the Court has held that, even in cases where, viewed objectively, Commu- nity law is incorrectly applied as a result of an interpretation adopted in good faith by the national authorities, costs incurred in that connection must, under Articles 2 and 3 of 36. In this connection it is also irrelevant that Regulation (EEC) N o 729/70, 23 be borne by during the preparation of Regulation N o the Member States. 24 That strict interpreta- 859/89 the Commission proposed the addi- tion of the conditions under which expendi- tion of further details concerning the types of ture is to be borne by the E A G G F is neces- tenderers who would be accepted, but those sary in view of the objectives of Regulation details were not included in the regulation. N o 729/70. Since the management of the The applicant infers from this that the regula- common agricultural policy must ensure tion was specifically intended not to define equality between traders in the Member States, individual tenderers more precisely. Again, it the national authorities of a Member State follows, according to the applicant, that no may not, by the expedient of a wide interpre- further restrictions can be imposed on the tation of a given provision, favour traders in term 'tenderer' other than that a tenderer that State to the detriment of those in other should be a single, independent, natural or Member States where a stricter interpretation legal person under national law. is applied. 25

23 — Council Regulation (EEC) N o 729/70 of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (I), p. 218). 24 — Article 3(1) of Regulation N o 729/70 provides: 'Intervention intended to stabilise the agricultural markets, undertaken according to Community rules within the frame- work of the common organisation of agricultural markets, 37. Even if it were possible to draw this con- shall be financed under Article 1(2)(b)'. 25 — Case 11/76 Netherlands v Commission [1979] ECR 245, clusion from those circumstances this would paragraphs 8 and 9. not alter the fact that in the light of the

39. In the Commission's view, the reduction made in the context of the clearance of accounts is justified on the ground that the applicant did not ensure compliance with that provision. 42. Thus, since in the context of the clearance of E A G G F accounts the Commission is dependent upon information provided by the Member States, it is not possible for it here to give a specific example of an infringement 40. It is clear that in Denmark tenders are under the tendering procedures. The Com- examined only to see whether they originate mission is able — and required — merely to from different legal persons. N o further exam- show that the applicant failed to examine all ination was undertaken. In what follows it the criteria necessary for the purposes of will now be considered whether on that basis compliance with the relevant provision. That the applicant may be said to have failed to the Commission has done. observe a provision of Community law, since the Commission has mentioned no actual example where tenders were in fact submitted 26 — Netherlands v Commission (cited in footnote 16, paragraph by nominees. 11).

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43. The Kingdom of Denmark has moreover tion or administrative action shall take the stated that there may have been a certain measures necessary to: amount of speculation in order to limit the risk of forfeiting the security payment.

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DENMARK v COMMISSION

judgment it was held in regard to Article 8(1) 48. Thus the question arises whether in the of Regulation N o 729/70: specific case now before the Court the appli- cant was required to carry out further checks, that is to say whether the Member State ought to have or could have done more, and if so what?

'That provision, which expressly lays down in that specific area the obligations imposed on Member States by Article 5 of the Treaty defines, the Court has said, the principles according to which the Community and the Member States must ensure the implementa- tion of Community decisions on agricultural intervention financed by the Fund and combat 49. As the Commission has stated, the disad- fraud and irregularities in relation to those vantage for the Fund arises out of the fact operations (BayWa, cited above, paragraph that the submission of several tenders by an 13). interested party by means of nominees encour- ages the submission of speculative tenders. Yet if one has regard to the Commission's action against speculative tenders as such, it might be queried whether the applicant was required to take any further steps.

51. In the present case, however, there was a ment of nominees. 33 The applicant cannot further provision to be considered which therefore claim that the checks that were could not be circumvented. An interested required before the adoption of the 1993 party desirous of selling his meat into inter- regulation were not possible due to lack of vention could not submit more than one time. In the present case this duty arose out tender. That followed from the underlying of the rationale underlying intervention long rationale of intervention. It is true that that before the provision was enacted in Regula- idea was only subsequently given concrete tion N o 2456/93. The important factor in that shape in Regulation N o 2456/93. 32 However, connection is that the Member State should that does not alter the fact that prior to this check whether in fact tenders are being made there must already have been awareness of in respect of different quantities of meat. The that idea. manner in which it carries out those checks is for it to decide. This does not need to be expressly regulated by the Commission. Accordingly, the Commission cannot be said, contrary to the applicant's submission, to be seeking to apply Regulation N o 2456/93 ret- roactively to the facts of the present case. 52. Thus, it is clear that the applicant ought to have carried out further checks in order to establish whether the tenders submitted were in fact from the same tenderer. That is par- ticularly the case in the light of the clear indi- cations, already alluded to, of interconnec- tions between individual tenderers. Even if it 54. It must therefore be held that the appli- could not with certainty be concluded from cant ought to have carried out further checks those interconnections that there was an but failed to do so. infringement of the last phrase of Article 9(2), the indications were however of such a nature as to necessitate more precise checks, and that was the sole decisive factor.

56. In order to answer that question regard 58. There may be a case of that kind here must be had to the Court's case-law on proof since, precisely because the necessary checks of loss and the burden of proof in the context were not made, the Commission was unable of the clearance of E A G G F accounts. Thus to establish to what extent the applicant's the Court has stated that only refunds granted conduct has occasioned loss to the EAGGF. and intervention undertaken in accordance It may only be speculated hypothetically what with the Community rules within the frame- costs would not have been incurred if the work of the common organisation of agricul- applicant had carried out the proper checks. tural markets are to be financed by the EAGGF. 34 Finally, the Court went on, when the Commission refuses to charge certain expenditure to the E A G G F on the ground that it was incurred as a result of breaches of Community rules for which a Member State can be held responsible, it is for that State to 59. Conversely, in a case in which the Com- show that the conditions for obtaining the mission called in question the correctness of financing refused by the Commission are ful- figures notified by a Member State, the Court filled. 35 held: 'The Commission is required not to demonstrate exhaustively that there are irregu- larities in the data submitted by the Member States but to adduce evidence of serious and reasonable doubt on its part regarding the figures submitted by the national authorities. The reason for this mitigation of the burden of proof on the Commission is that ... it is the State which is best placed to collect and verify the data required for the clearance of E A G G F accounts; consequently, it is for the State to 57. In that connection, a question arises as to adduce the most detailed and comprehensive the requirements which the Commission's evidence that its figures are accurate and, if submission with regard to the occasioning of appropriate, that the Commission's calcula- financial loss must satisfy. Under the Court's tions are incorrect.' 37 case-law, in cases where it cannot be estab- lished to what extent a national measure incompatible with Community law has led to an increase in the expenditure under a bud- getary heading of the EAGGF, the Commis- sion has 'no choice' but to disallow all the expenditure in question, and not merely a certain percentage of it. 36 60. That case is admittedly not direcdy com- parable with the present case since the Com- mission is not alleging that the figures com- municated to it by the applicant are incorrect. 34 — Netherlands v Commission (cited in footnote 16, paragraph The point is rather that the figures could have 14) with further references. 35 — Netherlands v Commission (cited in footnote 16, paragraph been different if the applicant had carried out 16) and United Kingdom v Commission (cited in footnote 17, paragraph 14). 36 — Case C-50/94 Greece v Commission [1996] ECR I-3331, paragraph 26, Joined Cases 15/76 and 16/76 France v Com- mission [1979] ECR 321, paragraph 32 et seq., and United 37 — Netherlands v Commission (cited in footnote 16, paragraph Kingdom v Commission (cited in footnote 17, paragraph 13).

adequate checks. In this case also, however, 18 March 1977 on the determination of prices the Commission has not merely submitted of adult bovine animals on representative that the E A G G F suffered loss. Rather it Community markets and the survey of prices showed that the applicant had infringed Com- of certain other cattle in the Community. 38 munity law and the manner in which it had Under that regulation the Commission done so. It has set out, furthermore, how that receives all the information necessary to enable may have favoured speculative bids by ten- it to assess the market situation. In this regard, derers. It has explained, finally, that that may it should be noted that this means the infor- have given rise to an erroneous appraisal of mation needed in order to determine the the market and thus to excessive buying-in of prices recorded on the representative markets beef, possibly at increased prices. Thus, in of the Community. The respective levels of any event, it has adduced credible evidence prices on the markets are important for that it was possible for loss to have been deciding whether it is appropriate to imple- incurred by the EAGGF. ment intervention measures. This is not the case as regards the determination of prices and quantities in the context of intervention. These are determined, pursuant to Regulation N o 571/89, on the basis of the tenders received. 39 61. A more extensive evidentiary obligation cannot be imposed on the Commission since the abovementioned grounds for easing the burden of proof also subsist in this case. N o r can it be ruled out beyond doubt that the applicant's conduct jeopardised the func- tioning of the common organisation of the 64. It follows that these figures relating to market. tenders have at least a part to play in the appraisal of the market and the determination of prices and quantities which are bought in. Thus it cannot be precluded that excessive bids could give rise to an erroneous assess- ment. 62. It is therefore for the applicant — as is apparent from the judgment cited in point 56 — to show that the conduct alleged against it did not lead to an increase in expenditure in the context of the EAGGF. The applicant submits that the Commission is not depen- dent on tenders for sale into intervention for- 65. This remains the case even bearing in warded by the Member States but has other mind that, as the applicant submits, the Com- possibilities available to it for obtaining infor- mission alone can have a global view of the mation on the prevailing market situation. market situation and that it alone decides on the quantity of meat to be withdrawn from the market. The Commission can also, the

applicant adds, determine a maximum price, 68. To distribute the burden of proof in that so that the price level is maintained. O n this manner in the present case also appears to be point, it should be observed that the Com- reasonable against the background of other mission takes all these decisions inter alia on judgments of the Court in regard to clearance the basis of the tenders submitted to it. If of accounts. Thus in cases where the C o m - those tenders are speculative they may give munity rules make payment of aid conditional rise to an erroneous assessment. on the observance of certain formalities relating to proof or checks having been observed, the Court has held that aid is not granted in conformity with Community law if those preconditions are not observed. The expenditure incurred in connection therewith could not be charged to the E A G G F even if it was clear that there had been no substan- tive irregularity. 40 66. The applicant submits moreover that the tendering procedure is by definition specula- tive and that it cannot therefore reflect the true situation on the market. It justifies this assertion by the fact that the slaughter date is subsequent to the submission of tenders. When the undertakings submit tenders, they do so in relation to the meat which they can obtain on the market in the days that follow. The purpose of intervention is however to with- 69. Likewise, in connection with the obser- draw from the market meat which is currently vance of formalities, the Court has held: 'In with the tenderer and cannot be disposed of view of the essential nature of the formalities on the normal market. So, for example, a cattle which were not complied with and of the fact breeder must be able to assess even before the that it was not possible to check that the slaughter date the quantity of meat which he time-limit within which the products were to intends to, or must, sell into intervention. In be exported was observed, and in view, there- that case it is not a question of buying meat fore, of the probability of losses, or even which he will still be able to obtain in the fraud, to the detriment of the Community days that follow. budget, the amount disallowed by the Com- mission, which was limited to 2% of the expenditure involved, cannot be regarded as excessive and disproportionate.' 41 Thus, even the mere likelihood of losses may be used as a criterion for the purpose of the assessment. Such likelihood also subsists in the present case in the light of the abovementioned fac- tors and the absence of checks. 67. Since the Commission has thus at least adduced credible evidence that the applicant's conduct may have occasioned loss to the 40 — C a s e327/85 Netherlands v Commission [1988] ECR 1065, EAGGF, it is for the applicant to show that paragraph 25. 41 — Cese C-49/94 Ireland v Commission [1995] ECR I-2683, this was not the case. paragraph 22.

75. In that connection, it should be said that the applicant is incorrectly assuming that no connection with a loss can be established. As demonstrated above, 42 a loss to the E A G G F cannot be ruled out. The applicant submits also that in this case it is possible to make a precise calculation, so that the Commission 72. It cannot be excluded that, if certain types does not have to have recourse to a flat-rate of speculation and various reduction coeffi- calculation. It is impossible to agree with the cients were assumed, it would also be pos- applicant on this because, as has already been sible to think of examples where a single shown, it is possible only to speculate hypo- tender would have been more advantageous thetically on what costs may not have been for the tenderer. This does not however invali- incurred. Moreover, it is sufficient to refer to date the Commission's assertion that the split- the Court's case-law in regard to cases in ting of a tender into several smaller tenders which the Commission does not disallow the reduces the risk of losing the security deposit. Even if that particular risk could not, as such, be reduced, the amount of the security retained could still be reduced. 42 — Sec points 55 to 73.

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Infringement of Article 190?

Costs

76. Finally, the applicant submits in addition that the Commission's decision must be 78. Under the first subparagraph of Article annulled because it contravenes Article 190 of 69(2) of the Rules of Procedure of the Court the EC Treaty. It maintains that the decision the unsuccessful party is to be ordered to pay is inadequately reasoned since the reason for the costs if they have been asked for in the disallowing the expenditure is not apparent successful party's pleadings.

43 — Judgment in Case 347/85 United Kingdom v Commission 44 — Judgment in Case 347/85 United Kingdom v Commission (cited in note 17 above, paragraphs 14 and 15). (cited in footnote 17 above, paragraph 60).

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