Opinion of Mr Advocate General Van Gerven delivered on 4 July 1989

1 Original language: Dutch.

2 The number of the contested decision is C (87) 2027

3 OJ, English Special Edition 1972 (II), p. 437

4 See the judgment of the Court of 28 January 1986 in Case 129/84 Italy v Commisson [1986] ECR 309, together with the Opinion of Sir Gordon Slynn at pp 312 to 319, with particular regard to Article 13

5 Council Regulation (EEC) No 1154/78 of 30 May 1978 amending Regulation (EEC) No 1035/72 on the common organization of the market in fruit and vegetables (OJ 1978, L 144, p. 5).

6 Mentioned in the Report for the Hearing in the summary of the letter from the Italian Minister of 18 July 1986.

7 Amending Regulation (EEC) No 1035/72 on the common organization of the market in fruit and vegetables, OJ 1983, L 325, p. 1.

8 Third recital in the preamble.

9 See in particular the system for the hop sector (mentioned by the Commission in the written procedure) (Council Regulation (EEC) No 1696/71 of 26 July 1971, OJ, English Special Edition 1971 (II), p. 634), the common organization in the fisheries sector (Council Regulation (EEC) No 100/76 of 19 January 1976, OJ 1976, L 20, p 1, Article 6(1)(2)) and the system governing various sectors simultaneously in three Member States in Regulation (EEC) No 1360/78 (OJ 1978, L 166, p 1, Article 10)

10 Admittedly, in such cases a recognition procedure under Community law is provided for (see paragraph 5 above) Moreover, the argument based on consistency, in conjunction with the wording of Article 14, could justify the opposite conclusion. In fact, the system originally used in France in that sector went by the dale of formation See paragraph 4 above

11 Judgment of 14 January 1981 in Case 819/79 Germany v Commission [1981] ECR 21, paragraphs 19 to 21.

12 See to the same effect the judgment of 27 January 1981 in Case 1251/79 Italy v Commission [1981] ECR 205, paragraphs 20 and 21.

13 In Case 347/85 United Kingdom v Commission [1988] ECR 1749, paragraphs 59 and 60; see also paragraph 78 of the Opinion of Mr Advocate General Mischo of 1 October 1987 delivered in that case.

14 The Commission refers to the judgment of the Court of 3 March 1982 in Case 14/81 Alpha Steel [1982] ECR 749, paragraph 10, and to the judgment of 21 September 1983 in Joined Cases 205 to 215/82 Deutche Milchkontrol [1983] ECR 2633, it is perhaps alluding to paragraph 33. which is of little relevance in this context

15 Judgment of 27 May 1981 in Cases 142 and 143/80 Essevi and Salengo[198l] ECR 1413

16 Judgment of 27 February 1985 in Case 56/83 Italy v Commission [1985] ECR 713, on this point at paragraph 31.

17 This management function is recognized in Anide 11 of basic Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy, OJ. English Special Edition 1970 (I), p 218

18 J. Schwarze, in Europaisches Verwaltungsrecht, 1988, p 425, describes the Durchfuhrungsrccht of the Commission as ergänzende Rechtsetzung

19 In legal doctrine proper to federal systems of law such as that of the Federal Republic of Germany much attention is paid to these relationships. See inter alia R. Boest: Die Agrarmärkte im Recht der EWG, 1984; J. Scherer: Das Rechnungsabschlußverfahren — Ein Instrument zur Durchsetzung europaischen Verwaltungsrechts? Europareckt 1986, at pp. 52 to 72; J. Schwarze: Europäisches Verwaltungsrecht, 1988.

20 These fundamental principles are considered together in paragraph 17 of the judgment of 21 September 1983 in Joined Cases 205 to 215/82 Deutsche Milchkontor [1983] ECR 2633. As regards recognition of the need to resolve certain problems of administrative law which are not specifically covered by the Treaty by drawing inspiration from the rules common to the law of the Member States, in order to avoid a denial of justice, I may refer to the judgment given by the Court on 12 July 1957 in Joined Cases 7/56 and 3 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 39, at p. 55 (Law, A, III, 5th paragraph).

21 The fact that the requirement imposed on a Member State to observe a reasonable period may be derived from the obligation to cooperate laid down in Article 5 of the EEC Treaty is borne out by the judgment of the Court of 6 July 1971 in Case 59/70 Netherlands v Commission [1971] ECR 639 in the context of Article 86 of the ECSC Treaty which is analogous to Article 5.

22 See footnote 15.

23 Regulation cited in footnote 16.

24 OJ, English Special Edition 1969 (I), p. 101.

25 It is in fact a variant, of a general nature, of the power of interpretation vested in anyone who applies a legal provision. When the interpretation given is applied in regard to different persons it is normal for it to be inserted in an interpretative document of a general nature.

26 Although the interpretation of Community rules by the Commission is not binding on national authorities (sec in that connection the judgment of the Court of 27 March 1980 in Case 133/79 Sucnmex [1980) ECR 1299, paragraphs 16 and 22, and the judgment of 10 June 1982 in Case 217/81 Interagra 11982] ECR 2233, paragraph 8) it is very important (sec tne judgment of tnc Court of 25 November 1980 in Case 820/79 Belgium v Comimmoii [1980] ECR 3537. paragraphs 13 and 15), and is more persuasive when it expresses general principles of law which arc themselves binding.

27 See Article 7(1), cited above, of Regulation (EEC) No 729/70 to which Article 36 of Regulation (EEC) No 1035/72 refers. It is not disputed that the Commission followed the procedure which is there stipulated (see the last recital in the preamble to the contested decision) and, moreover, that it was constantly in contact with Italy over the fixing of the period in question. Incidentally, I would observe that both paragraphs of Article 7 require the Fund Committee to be consulted but that that article, applicable to the Guidance Section, is drafted less precisely as regards the nature or the form of the provisions which are referred to therein than the corresponding Anieles 2 to 5 for the Guarantee Section. That circumstance, which is aggravated by the absence of case-law of the Court on Article 7, may be explained in my view by the fact — which is also apparent in this case — that in the Guidance Section it is less frequently that operators are granted direct aid. It is therefore more often a purely inter-administrative relationship in which a more flexible approach is justified.

28 In a passage of ils memorandum of 30 July 1980 reproduced in the Report for the Hearing, the Commission spoke in the authentic Italian version of la concessione (the grant) and il pagamento (payment), two actions which are covered by the term accordare (grant) used in the first sentence of Article 14(1).

29 See paragraph 2 above for the method of calculating aid on the basis in particular of members' production in tne three calendar years preceding the year in which they became members.

30 The principle of equal treatment is in fact not entirely irrelevant if only one Member State operates the system under examination. In its judgment of 3 May 1978 in Case 112/77 Töpfer [1978] ECR 1019, paragraph 20, the Court in fact discussed equal treatment in terms of preventing privileged positions from becoming established.

31 See in particular the reference to a letter from the competent Italian ministry made in the abovcmentioned letter of 30 July 1980.

32 See footnote 8.

33 Judgments of 7 February 1979 in Case 11/76 Netherlands) Commission [1979] ECR 245, paragraphs 8 and 9, and in Case 18/76 Germany v Commission [1979] ECR 343, paragraphs 7 and 8. See also the judgment of 28 January 1986 in Case 129/84 Italy v Commission [1986] ECR 309, paragraph 19.

34 It is not immediately clear why the need to check whether the organizations satisfy the conditions for the grant of aid may constitute an obstacle to the payment of aid within the period prescribed. Since that verification relates to the functioning of the organizations, that can be carried out at any time and during the whole year. As an example of a case relating to the conditions for the grant of aid I would refer again to the judgment of the Court mentioned in footnote 3.

35 Judgment of 28 January 1986 mentioned in footnote 3, paragraph 20.

36 It is now otherwise: since 1 June 1984 the recognition of organizations is prescribed by Community law (Regulation (EEC) No 3284/83, examined above at paragraph 5, in particular Article 13(2) thereof).