Report for the Hearing delivered in Joined Cases 97, 193, 99 and 215/86

I — Facts

1. Council Regulation No 1152/78 of 30 May 1978 (Official Journal 1978 L 144, p. 1), amending Council Regulation No 516/77 of 14 March 1977 (Official Journal 1977 L 73, p. 1) on the common organization of the market in products processed from fruit and vegetables, established a system of production aid for certain products of particular importance in the Mediterranean regions, including tomato concentrates. The aid is intended to make up the difference between the level of prices of Community products, calculated on the basis mainly of a minimum price to be paid to tomato producers, set by the Commission before each marketing year, and of production costs, and the level of prices of products from nonmember countries.

2. Articles 58 and 59 of the Act of Accession of Greece to the European Communities (Official Journal 1979 L 291, p. 17) provide for the gradual alignment of Greek agricultural prices with the common prices. For products processed from tomatoes, falling under Regulation No 516/77, Article 59 (2) provides for the alignment of prices in seven stages. According to paragraphs (1) and (2) of Article 103, on the application in Greece of the aid systems laid down in Regulation No 516/77, the minimum price applicable in Greece is to be aligned with the common price in accordance with the detailed rules laid down in Article 59. Under Article 103 (3) the amount of Community aid granted in Greece is to be fixed in such a fashion as to compensate for the difference between the level of prices of products of third countries and the level of prices of Greek products established taking into account the minimum price and the processing costs obtaining in Greece.

3. For each marketing year the Commission, under the management committee procedure, adopted a regulation setting minimum prices payable to producers and amounts of production aid for Greece and for the other Member States:

4. Production aid is fixed per 100 kg of tomato concentrate with a specific dry weight content packed in containers of a specific weight. In order to take into account differences in concentration and in packaging inter alia the Commission adopted for each marketing year a regulation setting coefficients to be applied to the amount of production aid for tomato concentrates :

5. An action for the annulment of Regulation No 1962/81 brought by a number of Greek producers, who argued that the system of uniform coefficients was discriminatory inasmuch as it did not compensate for processing costs for packagings smaller than the standard packaging, which were higher in Greece than in the other Member States, was dismissed as inadmissible by the judgment of the Court of 7 October 1982 (Case 250/81 Greek Canners v Commission [1982] ECR 3535) on the ground that the regulation was exclusively legislative in nature and, although it might affect the applicants, was not of direct and individual concern to them within the meaning of Article 173 of the EEC Treaty.

6. By its judgment of 19 September 1985 in an action brought by the Hellenic Republic (Case 192/83 Greece v Commission [1985] ECR 2791), the Court annulled Regulation No 1615/83 fixing the coefficients to be applied to production aid for tomato concentrates in so far as the coefficients fixed in that regulation give rise to unequal treatment as between the Hellenic Republic and the other Member States as regards compensation for the extra costs incurred as a result of the use of packaging smaller than the standard packaging adopted by Article 1 (2) of Commission Regulation No 1618/83 of 15 June 1983 fixing for the 1983/84 marketing year the minimum price to be paid to producers and the amount of production aid for certain products processed from fruit and vegetables.

7. An action for damages under Article 178 and the second paragraph of Article 215 of the EEC Treaty brought by applicants (1) to (13) in Cases 97/86 and 193/86 was dismissed by the judgment of the Court of 19 September 1985 (Joined Cases 194 to 206/83 As teris and Others v Commission [1985] ECR 2815) on the ground that the illegality of the coefficient system (according to the judgment of the Court in Case 192/83) could not be regarded as constituting a serious breach of a superior rule of law or as manifest and grave disregard by the Commission of the limits on its power so as to give rise to liability on the part of the Community.

8. The Commission considered that in Case 192/83 the Court had declared Regulation No 1615/83 void in so far as the coefficients fixed in that regulation gave rise to unequal treatment as between Greece and the other Member States concerning compensation for the extra costs incurred as a result of the use of packagings smaller than the standard packaging; it therefore adopted Regulation No 381/86 of 20 February 1986 on additional payment of production aid for certain sizes of packagings with tomato concentrates obtained from Greek tomatoes during the 1983/84 marketing year (Official Journal 1986, L 44, p. 16). The regulations fixing the coefficients for the previous and subsequent marketing years were not amended.

9. By a letter of 10 April 1986 applicants (1) to (15) in Cases 97/86 and 193/86 asked the Commission to adopt, in accordance with the judgments of 19 September 1985, the necessary measure in order to fix additional aid for Greek processors for small packagings in respect of the 1981/82, 1982/83, 1984/85 and 1986/87 marketing years.

10. In its reply dated 11 June 1986 the Commission took the view that the judgment in Case 192/83 annulling Regulation No 1615/83 required it only to adopt a new regulation for the 1983/84 marketing year, which it had done by adopting Regulation No 381/86.

11. By a letter of 17 April 1986 which was forwarded to the Commission under cover of a letter of its Permanent Representation dated 23 April, the Hellenic Republic called upon the Commission to adopt the necessary measure in order to fix the supplementary aid payable to Greek manufacturers of tomato concentrate for concentrates packed in small containers and processed from tomatoes produced in Greece during the 1981/82, 1982/83, 1983/84, 1984/85, 1985/86 and 1986/87 marketing years in order to redress the injustice suffered by them because of the technical errors committed by the Commission in adopting the corresponding regulations, which gave rise to unequal treatment to their detriment.

12. In its reply dated 19 June 1986, the Commission took the view that the judgment of 19 September 1985 in Case 192/83 entailed the obligation for it to adopt a new regulation concerning only the 1983/84 marketing year, to take the place of the annulled regulation, Regulation No 1615/83. By adopting Regulation No 381/86 it had complied with that judgment.

II — Written procedure and conclusions of the parties

1. By an application lodged in Case 97/86 at the Court Registry on 14 April 1986 the companies listed above under Nos 1 to 15 brought an action for the annulment of Regulation No 381/86 and of the Commission's refusal to comply in full with the judgments of 19 September 1985.

2. The applicants claim that the Court should:

3. The Commission, the defendant, submits that the Court should:

4. By an application lodged in Case 99/86 at the Court Registry on 21 April 1986 the Hellenic Republic brought an action for the annulment of Commission Regulation No 381/86 and of the Commission's refusal to comply in full with the judgments of 19 September 1985.

5. The Hellenic Republic claims that the Court should:

6. The Commission, defendant, submits that the Court should:

7. By an application lodged in Case 193/86 at the Court Registry on 29 July 1986 the companies listed above under Nos 1 to 15 brought an action for the annulment of the position taken by the Commission in its letter of 11 June 1986 and its refusal, expressed in that letter, to comply with the judgments of the Court of 19 September 1985.

8. The applicants claim that the Court should:

9. The Commission, defendant, submits that the Court should:

10. By an application lodged in Case 215/86 at the Court Registry on 6 August 1986 the Hellenic Republic brought an action for the annulment of the position taken by the Commission in its letter of 19 June 1986 and of its refusal, expressed in that letter, to comply with the judgments of the Court of 19 September 1985.

11. The Hellenic Republic claims that the Court should:

12. The Commission, defendant, submits that the Court should:

13. By an order of 17 June 1987 the Court decided to join Cases 97/86, 193/86, 99/86 and 215/86 for the purposes of the oral procedure and of the judgment.

14. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without ordering any preparatory inquiries.

III — Submissions and arguments of the parties

A — Admissibility

1. The Commission submits that the applications in Cases 97, 193 and 215/86 are inadmissible.

2. The applicants in the three cases argue that their actions are admissible.

3. The Hellenic Republic submits that the action in Case 215/86, which must moreover be viewed in the same context as the related action in Case 99/86, is admissible. The important point is not to what extent the Commission has defined its position in accordance with the second paragraph of Article 175 of the EEC Treaty but to what extent it is entitled, in so defining its position, to disregard the principle of equality which governs the Community legal system and the findings of the Court in its judgments of 19 September 1985. For an action based on Article 175 of the Treaty to be inadmissible it is not sufficient that the Commission should have adopted any position whatsoever. The position taken by the Community institution must be in accordance with the law and must in any event be subject to judicial review. That interpretation is confirmed by Article 35 of the ECSC Treaty, to which the Court may refer where the other Treaties are silent on the matter, under which an action for failure to act is treated in its final stages as an action for annulment.

B — Substance

1. The applicants in Cases 97/86 and 193/86 and the Hellenic Republic in Cases 99/86 and 215/86 argue that the Commission has infringed Article 40 (3) of the EEC Treaty, in particular the principle of equality contained therein, and Article 176 of the EEC Treaty.

2. The Commission argues in all these cases that the actions are without foundation and that it correctly implemented the judgments of 19 September 1985.

1 Language of the Case: Greek.