Opinion of Mr Advocate General Lenz delivered on 7 March 1990

1 Original language: German.

2 Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables (OJ 1986, L 49, p. 1)

3 The aids in question were fixed by the Commission: (i) for the 1984/85 marketing year, by Regulation (EEC) No 1925/84 of 5 July 1984 (OJ 1984, L 179, p 15), (ii) for the 1985/86 marketing year, by Regulation (EEC) No 2222/85 of 31 July 1985 (OJ 1985, L 205, p. 16); (iii) for the 1986/87 marketing year, by Regulation (EEC) No 2077/86 of 30 June 1986 (OJ 1986, L 179, p. 11); (iv) for the 1987/88 marketing year, by Regulation (EEC) No 2160/87 of 22 July 1987 (OJ 1987, L 202, p. 32).

4 Council Regulation (EEC) No 989/84 of 31 March 1984 introducing a system of guarantee thresholds for certain processed fruit and vegetable products (OJ 1984, L 103, p. 19).

5 The letter also concerns another complaint, which relates to the peach sector and is unconnected with the present dispute.

6 My emphasis.

7 Judgments of 25 September 1979 in Case 232/78 Commission v France [1979] ECR 2729 and of 18 October 1979 in Case 125/78 GEMA v Commission [1979] ECR 3173

8 Section A.

9 Summary of the judgment of 1 March 1966 in Case 48/65 Lütticke and Others v Commission [1966] ECR 19.

10 Judgment of 14 February 1989 in Case 247/87 Star Fruit Company SA v Commission [1989] ECR 291, paragraph 13.

11 Judgments of 25 October 1977 in Case 26/76 Metro v Commission [1977] ECR 1875, of 4 October 1983 in Case 191/83 Fediol v Commission [1983] ECR 2913, of 11 October 1983 in Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045, of 20 March 1985 in Case 264/82 Timex v Council and Commission [1985] ECR 849 and of 28 January 1986 in Case 169/84 Cofaz and Others v Commission [1986] ECR 391.

12 Judgment of 14 February 1989 in Case 247/87 (see footnote 9), paragraph 11, in this regard, see the Opinion of Advocate General Gand in the early case of Lutticke v Commission (footnote 8) [ 1966] ECR 19. at p. 31

13 See in this regard the judgments of the Court of 14 December 1962 in Joined Cases 16/62 and 17/62 Conféderation nationale des producteurs des fruits et légumes and Others v Council [1962] ECR 471, of 5 November 1986 in Case 117/86 Ufade v Council and Commission [1986] ECR 3255 and the order of 18 January 1989 in Case 167/87 OPAGAC and Others v Commission [1989] ECR 55, paragraph 7.

14 Council Regulation (EEC) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables (OJ 1977, L 73, p. 1).

15 Commission Regulation (EEC) No 1599/84 of 5 June 1984 laying down detailed rules for the application of the system of production aid for products processed from fruit and vegetables (OJ 1984, L 152, p 16).

16 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).

17 See also in this regard the judgment of 21 September 1983 in Joined Cases 205/82 to 215/82 Deutsche Milchkontor ana Others v Federal Republic of Germany [1983] ECR 2633, according to which under the institutional system of the Community and the provisions which govern the relations between the Community and the Member States, in the absence of a provision of Community law to the contrary, it is for the Member Stales to ensure that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory (see also the judgments of 6 June 1972 in Case 94/71 Schluter [1972] ECR 307 and of 7 July 1987 in Joined Cases 89/86 and 91/86 L'Étoile commerciale and Others v Commission [ 1987] ECR 3005)

18 See footnote 2 above

19 See the final sentences in each of the regulations mentioned in footnote 2.

20 As required by the established case-law of the Court; see most recently the judgment of 29 June 1989 in joined Cases 250/86 and U/87 RAR v Council and Commission [1989] ECR 2045, paragraph 19; see also the judgment of 21 November 1989 in Case C-244/88 Les usines coopératives de déshydratation du Vexin and Others v Commission [1989] ECR 3811.

21 In the version in Commission Regulation (EEC) No 1455/85 (OJ 1985, L 144, p. 69).

22 Commission Regulation (EEC) No 2223/85 of 31 July 1985 laying down detailed rules for the application of temporary measures for production aid to processed tomato products (OJ 1985, L 205, p. 19).

23 Council Regulation (EEC) No 1320/85 of 23 May 1985 on temporary measures for production aid to processed tomato products (OJ 1985, L 137, p. 41).

24 Regulation (EEC) No 283/72 of the Commission of 7 February 1972 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organization of an information system in this field (OJ, English Special Edition, 1972(1), p. 90).

25 Established case-law: see the judgments of 26 February 1986 in Case 175/84 Krohn v Commission [1986] ECR 753 and of 7 July 1987 in loined Cases 89/86 and 91/86 L'Étoile commerciale ana CNTA v Commission [1987] ECR 3005.

26 See the Commission's reply of 30 January 1987 to the Parliamentary question of Michel Debatisse, Member of the European Parliament (OJ 1987, C 149, p. 22).

27 See footnote 23 and the Commission's reply to the Court of Auditors' Special Report No 2/89 (OJ 1989, C 128, p. 44/76), cited by the applicants.

28 Judgment of 4 July 1989 in Joined Cases 326/86 and 66/88 Franceiconi and Others v Commission [1989] LCR 2087

29 Op cit (footnote 24).

30 Judgment of 15 July 1963 in Case 25/62 Plaumann v Commission [1963] ECR 213

31 Judgment of 2 December 1971 in Case 5/71 Sthoppemtedt v Council [1971] ECR 975

32 Judgment in Krohn, cited above, paragraph 32.

33 Established case-law; see the judgment of 2 December 1971 in Case 5/71, op cit.; most recently confirmed in the judgment of 28 November 1989 in Case C-122/86 Epicheiriseon and Others v Commission and Council [1989] ECR 3959.

34 Council Regulation (EEC) No 1277/84 of 8 May 1984 laying down general rules for the system of production aid for processed fruit and vegetables (OJ 1984, L 123, p. 25).

35 Judgment o( 25 May 1978 in Joined Cases 83/76 and 94/76, 4, 15 and 40/77 Bayerische HNL and Others v Council and Commission (1978] ECR 1209.

36 Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, Joined Cases 241, 242 and 245 to 250/78 DCV und Rheinische Kraftfutterwerke and Others v Council and Commission [19791 ECR 3017, Joined Cases 261/78 and 262/78 Interquelt und Diamalt v Council and Commission [1979] ECR 3045

37 In so far as the Court found that equal treatment had been abandoned in the sector in question without a sufficient statement of reasons, it is probably referring to the manifest nature of the infringement; on this interpretation of the case-law, see also the Opinion of Mr Advocate General Darmon of 10 March 1989 in Case 20/88, paragraph 52 (judgment of 30 May 1989, ECR 1553, at p. 1561).

38 For the sake of completeness only, I set out the following approximate calculation; in Annex 9 to the application, the applicants calculate that if the threshold had not been exceeded, they would have received aid amounting to ECU 50 million in the marketing years in question. Since, according to the tables produced by the Commission, which the applicants do not dispute — at least as far as their order of magnitude is concerned — French processors had a share of Community production of about 5%, the only amount to be considered certain, which is an amount of ECU 15.5 million of aid wrongly granted on account of fraud, would represent scarcely more than 1.2% of the total amount of aid due to processors in the Community (if the threshold is not exceeded).

39 See the judgment of 14 May 1975 in Case 74/74 CNTA v Commission [1975] ECR 523, paragraph 1 and of 2 June 1976 in Joined Cases 56 to 60/74 Kampffmeyer and Others v Commission and Council [ 1976] ECR 711, paragraph 1.