Opinion of Advocate General Tesauro

Mr President,

Members of the Court,

1. For the second time the Court of Justice is called upon to give judgment by default. The Hellenic Republic did not lodge a defence within the prescribed period. Accordingly, by a document lodged on 9 June 1988 the Commission applied for judgment by default pursuant to Article 94(1) of the Rules of Procedure. Its conclusions were as follows:

2. The legislative background is as follows. Article 13(1) of Regulation (EEC) No 2727/75 on the common organization of the market in cereals provides that a levy equal for each product to the threshold price less the cif price is to be charged on imports.

3. The facts of the present case and the course of the procedure are described in the Report for the Hearing, to which I refer the Court. I shall give details thereof only in so far as is necessary for my reasoning.

4. No problems arise in my opinion concerning the admissibility of the application and the due fulfilment of the procedural formalities, which the Court is required to verify by virtue of Article 94(2) of the Rules of Procedure. It is therefore necessary to consider whether the applicant's submissions appear well founded.

5. In its first submission, the Commission complains, on the basis of information obtained during an on-the-spot investigation carried out in 1986 and subsequent inquiries, that the Hellenic Republic failed to establish and make available to the Commission the agricultural levies payable on two consignments of maize of Yugoslav origin imported into Greece and subsequently exported to Belgium as goods of Greek origin.

6. The place and date of loading of the second consignment —11000 tonnes of maize aboard the Flamingo — are not, on the other hand, contested. Nevertheless, the Commission considers that in that case, contrary to the particulars certified by the Greek authorities, the maize had been brought from Yugoslavia by rail to the port of Salonica and was then loaded as Greek maize without any agricultural levy being collected.

7. A review of the information produced to the Court, the essential features of which I have just mentioned and which is to be found in various parts of the investigators' report annexed to the application, and an appraisal of the conduct of the Greek authorities in the course of the investigation, in particular the refusal to allow an examination of documents which might have clarified even better the pattern of the events at issue, prompt me to conclude that the Commission has in this case discharged the obligation incumbent upon it under the procedure provided for in Article 169 of the Treaty to provide proof of the alleged failure to fulfil obligations.

8. However, the Greek authorities did no more than plead in somewhat general terms at the pre-litigation stage that the matter was the subject of a judicial investigation and that it was necessary to await the outcome of those proceedings before carrying out the measures proposed by the Commission.

9. However, I should point out that, particularly in an area as delicate as that of establishing own resources and combating fraud detrimental to the Community budget, the obligation to cooperate laid down in Article 5 of the EEC Treaty — an article which, as the Commission correctly remarked in its application, in a way provides the background to and the basis for the proceedings with which we are concerned — is one which must be strictly complied with by the Member States in order to ensure that the Community may dispose of its own resources in the best possible conditions.

10. In its second submission, the Commission asks the Court to declare that interest should have been paid on the sum due from 20 July 1986 until that sum was paid.

11. The complaint concerning failure to effect post-clearance recovery of the uncollected levies, pursuant to Article 2 of Regulation No 1697/79, also appears well founded.

12. The fourth submission is based on Article 5 of the Treaty. The Commission criticizes the Greek authorities for not having commenced appropriate criminal and disciplinary proceedings against the perpetrators of the fraud and their accomplices.

13. Similarly vague and inchoate were the replies given by the Greek authorities concerning the inquiries and verifications carried out and the additional inspection measures requested by the Commission at the end of January 1987. In that case, too, despite the repeated requests from the Commission, it does not appear that any precise information has been provided as to the progress and results of any inquiries.

14. In the light of the foregoing considerations, I propose that the Court:

1 Original language: Italian.

2 The other case in which judgment was given in default was that of 23 March 1988 in Case 105/87 Morabito [19881 ECR 1707.

3 OJ 1977, L 336, p. 1.

4 OJ 1975, L 281, p. 1.

5 OJ 1979, L 197, p. 1.

6 See most recently the judgment of 25 April 1989 in Case 141/87 Commission v Italy [1989] ECR 943, paragraph 15.

7 See judgment of 22 September 1988 in Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 21

8 See the judgment of 10 January 1980 in Case 267/78 Commission v Italy [1980] ECR 31, paragraph 20

9 See the judgment of 5 May 1977 in Case 110/76 Pretore di Cento v Ignoto 91977] ECR 851, paragraph 6.

10 See judgments of 22 February 1989 in Case 54/87 Commission v Italy [1989] ECR 385, paragraph 12; of 18 December 1986 in Case 93/85 Commission v United Kingdom [1986] ECR 4011, paragraph 37; and of 20 March 1986 in Case 303/84 Commission v Germany [198)6) ECR 1171, paragraph 17.