Opinion of Advocate General Gulmann delivered on 17 March 1992

1 Original language: Danish.

2 Decision 89/627/EEC of 15 November 1989 (OJ 1989 L 359, p. 23).

3 Judgments in Cases C-259/87, C-334/87 and C-335/87 Greece v Commission [1990] ECR I-2845, I-2849 and I-2875; judgment in Case C-35/88 Commission v Greece [1990] ECR I-3125; and judgment in Case C-32/89 Greece v Commission [1991] ECR I-1321.

4 See Point 4.1.4.1 of the summary report drawn up by the Commission on the results of invesugations carried out in connection with the clearance of EAGGF accounts for 1987 (hereinafter the Summary Report), which is submitted as Annex 3 to the statement of defence.

5 See note 2.

6 That programme contract is also the subject of Case C-61/90, at present pending before the Court of Justice and brought by the Commission against the Hellenic Republic under Article 169 of the EEC Treaty, in which I delivered the Opinion on 12 February 1992.

7 See point 4.2.2.2.3(1) of the Summary Report, which Ís included as Annex 10 to the statement of defence, along with point 4.2.2.2.3(1) and point 4.2.2.2.5 in Addendum 2(1) of the Summary Report, included as Annex 1 to the Commission's reply to the questions put by the Court.

8 The Hellenic Republic argued in its application that the Commission levied an excess amount or DR 409456000, even though it does not appear from the annexes submitted that the Commission was ever under an obligation to adjust that amount. That argument would also appear to have been withdrawn in the light of the Hellenic Republic's reply to the questions put by the Court, in which the Hellenic Republic states that if the Commission's calculations are used as a basis there must be an adjustment of DR 256464000 corresponding to the co-responsibility levy on 411000 tonnes, and not one of DR 409456000. The Hellenic Republic's view that the financial adjustment in respect of 411000 tonnes of cereals amounts to DR 256464000 and not DR 258108000, the amount in which the Commission actually made the adjustment, may be explained by the fact that the Hellenic Republic calculated the rate of ECU 5.38/tonne at DR 624/tonne, whereas the Commission calculated it at DR 628/tonne. However, the Hellenic Republic has not disputed the rate applied by the Commission.

9 OJ 1986 L 139, p. 29.

10 Commission Regulation (EEC) No 2040/86 of 30 June 1986 (OJ 1986 L 173, p. 65), as amended by Commission Regulation (EEC) No 2572/86 of 12 August 1986 (OJ 1986 L 229, p. 25), lays down more detailed provisions governing the payment of the co-responsibility levy for cereals. Council Regulation (EEC) No 1584/86 of 23 May 1986 (OJ 1986 L 139, p. 41) set the amount of the co-responsibility levy for the 1986/87 marketing year at ECU 5.38/tonne.

11 See point 4.2.2.2.1 and point 4.2.2.2.2 in the Summary Report (Annex 10 to the statement of defence).

12 The letter is included in Annex 14 to the statement of defence.

13 The telex is reproduced in Annex 12 to the statement of defence.

14 This amount results from the fact that the Hellenic Republic states in its application that the Commission is seelting DR 409456000 too much in co-responsibility levy. That amount must be calculated as follows: 5141000 tonnes — 4489000 tonnes = 652000 tonnes × DR 628/tonne = DR 409456000.

15 The Greek Government claims to have expressly pointed out that the figure was provisional inasmuch as certain information haa to be confirmed before the figure could be regarded as definitive, but it fails to produce any documentary evidence in support of this. In its reply to the questions put by the Court of Justice, the Hellenic Republic stated that the figures were based on estimates of the future harvest; that does not make much sense, given that the figures must be calculated oneyear after the expiry of the marketing year in question. The Hellenic Republic stated during the oral proceedings that the misunderstanding was due to poor drafting.

16 In its answer to one of the questions put by the Court, the Hellenic Republic stated that the estimate expressed in the figure first submitted had been particularly difficult to make by reason of the Chernobyl nuclear accident. As a result of that accident, the Commission prohibited the marketing of cereals contaminated by radioactivity and those products were accordingly stored away for more than two years in the depots of producers and wholesalers. The Hellenic Republic has been unable convincingly to explain in more detail the connection between the volume of cereals deposited and the reduction in total domestic consumption.

17 See point 4.9.1 in the Summary Report, included as Annex 16 to the statement of defence.

18 OJ, English Special Edition 1970 (II), p. 497.

19 OJ, English Special Edition 1970 (II), p. 592.

20 OJ, English Special Edition 1970 (I), p. 218.

21 In its judgment in Joined Cases C-161/90 and C-162/90 Petruzzi and Longo [1991] ECR I-4845, which concerned examinations of the organoleptic characteristics of olive oil, the Court ruled as follows: ... the very effectiveness of subsequent checks on the original classification of the oil implies that the Commission must be free to apply any system of analysis which enables it to determine with certainty whether the classification of the oil, at the time when it was submitted for intervention, complied with the designation criteria referred to in the apphcable Community rules. ... Community law entitles the Commission, for the purpose of verifying, under strict conditions of reliability, the regularity of intervention operations, to carry out an examination which is more than a mere repetition of the analysis made when the oil was submitted for intervention (paragraphs 17 and 18, my emphasis).

22 See, inter alia, the judgments in the following cases: Case 49/83 Luxembourg v Commission [1984] ECR 2931, at paragraphs 29 and 30; Case 347/85 United Kingdom v Commission [1988] ECR 1749, at paragraph 14; Case C-8/88 Germany v Commission [1990] ECR I-2321; Case C-197/90 Italy v Commission [1992] ECR I-1, at paragraph 15.

23 The Hellenic Republic limited itself in this respect to replying, in its answer to the Court's questions, that the Hellenic authorities cannot accept that there may be differences greater than 1.3% going beyond the assessments made by Greece.

24 France v Commission [1990] ECR I-3571.

25 The judgment of the Court in Case 214/86 (summary judgment) Greece v Commission [1989] ECR367 concerned, inter alia the validity of a decision by which the Commission, following a detailed analysis of samples taken by the Hellenic Republic, could only accept that 10% or the batches of durum wheat from which samples had been taken had been lawfully sold into Community intervention. So far as the remaining batches of durum wheat were concerned, Community financing was disallowed in full. In the case of these remaining portions, the Court merely pointed out that in so far as the Commission refused to allow the EAGGF to pay a range of expenditure on the ground that the expenditure was due to the fact that the Member State had failed to comply with rules of Community law, the Member Sute itself had to establish that the conditions necessary for the granting of Community finance had been satisfied. As Advocate General Van Gerven pointed out in his Opinion in Case C-8/88 (see note 21 above), it appears that the Court accepted in that judgment a principle of extrapolation.

26 See note 21.

27 Netherlands v Commission [1988] ECR 1065.

28 See note 21.

29 OJ 1978 L 216, p. 1. Article 4 of Regulation No 1883/78 provides as follows:1. Where an intervention measure referred to in Article 3 involves the buying-in and storage of products, the amount financed shall be determined by the annual accounts drawn up by the payment services or agencies, in which the various items of expenditure and revenue have been respectively debited and credited. ....