Opinion of Advocate General Gulmann delivered on 12 February 1992

1 Original language: Danish.

2 See in particular the judgments: in Case C-281/87 Commission v Greece [1989] ECR 4015 concerning instructions from Greece to KYDEP to purchase inferior-quality durum wheat from the 1982 harvest; in Case C-35/88 Commission v Greece [1990] ECR I-3125 concerning the Greek Government's influence on KYDEP's activities on the market in feed grain; in Case C-32/89 Greece v Commission [1991] ECR I-1321 concerning the Greek Government's conclusion of programme contracts with KYDEP relating to the export of common and durum wheat and Kydep's placing durum wheat into intervention on instructions from the Greek Government; and in Case C-110/89 Commission v Greece [1991] ECR I-2659 concerning measures preventing the export of maize except by KYDEP.

3 OJ 1975 L 281, p. 1.

4 Sec note 1.

5 Commission v Netherlands [1991] ECR I-5816.

6 Mr Advocate General Van Gerven said :... The assertion that the residence requirement is a disguised form of discrimination is to my mind a development of that argument which, moreover, may be regarded as having been raised by implication in the reasoned opinion, all the more so since the Netherlands Government did not claim an infringement of the rights of the defence on this point. I therefore consider that the argument as to a disguised discrimination is admissible

7 Judgment in Case 31/69 Commission v Italy [1970] ECR 25. Cf. also the judgments in Case 51/83 Commission v Italy [1984] ECR 2793 at paragraphs 4 and 5 and in Case 274/83 Commission v Italy [1985] ECR 1077 at paragraphs 19 and 20.

8 One might also ask, with some justification, why the Court's (Tiny of review should be greater when it is dealing with actions for failure to fulfil obligations under the Treaty than in applications for a declaration that a Commission decision in a competition case is void. In Article 19 of Regulation No 17 of the Council (OJ, English Special Edition 1959-1962, p. 87) as supplemented by Article 4 of Regulation No 99/63/EEC of the Commission on the hearings provided for in Article 9(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47) it is stated that the Commission shall in its decisions against undertakings deal only with those objections in respect of which the undertakings concerned have been afforded the opportunity of making known their views in the prior administrative proceedings. In accordance with these provisions the Court has stressed, in its case-law, that the Commission decision musi be based solely on objections contained in the Commission's prior statement of objections. As far as I am aware, however, this question has never been examined by the Court of its own motion. A declaration that a Commission decision is void on the ground that the Commission's statement of objections does not correspond to the subsequent decision seems thus to have been made solely after a claim to that effect by the undertaking concerned. My view is that the two situations have so much in common that it may seem difficult to explain why they should not be dealt with in the same way.

9 It appears further from, the documents before the Court that a committee had been appointed, consisting of representatives of the organization for the promotion of exports, the Ministry of Economic Affairs, the Ministry of Agriculture and KYDEP, its purpose being to negotiate with the traders regarding the conclusion of contracts with KYDEP for the purchase of wheat on the usual conditions against a subsidy direct from the Ministry of Economic Affairs. However, it is not clear how far contracts of that type were ever concluded. Reference may be made to the order of the Ministry of Economic Affairs of 26 November 1982, produced by the Greek Government, and to the analytical report concerning KYDEP's accounts for 1988, p. 71, produced as Annex XII to the application.

10 See note 1.

11 See note 1.

12 In that extract the Court is referring to an internal memorandum of 6 June 1985 from the board of KYDEP which is also produced as an annex in this case, cf. Annex IV to the application.

13 Contracts were concluded for the performance of this programme contract between KYDEP and private traders. As Annex II to its application the Commission has produced two such contracts concluded in January and February 1983. It appears from them that the traders were required to mill and export the flour at the latest by 30 September 1983, that the traders incurred fines from the Greek State if the foreign currency was not repatriated and that KYDEP allowed the traders eight months' interest-free credit. The Commission states in addition that the prices entered in the contracts were below the intervention price at the material time. That is not challenged by the Greek Government. From a letter of 23 December 1982 from the Ministry of Economic Affairs to the National Bank of Greece, produced by the Greek Government, and a letter of 24 December 1982 from the Director of the National Bank of Greece to all banks, produced as Annex XVI to the application, it appears that the credit granted by KYDEP was approved by the Ministry of Economic Affairs and financed by the Greek Agricultural Bank, which again was re-financed by the National Bank of Greece.

14 The report is produced in summary form as Annex XII to the application.

15 The report is produced as Annex X to the application. From p. 12 it appears that the acknowledged programme contract cost the State DR 1500000000. In its pleadings the Hellenic Republic has claimed that the version of the report produced by the Commission docs not agree with the official version. It is correct that the version of the report produced by the Greek Government docs not contain the passages concerning the Greek Government's interference in KYDEP's operations. The version produced by the Commission may be regarded as an earlier edition of the report. That version was, according to the Commission, sent to a large number of the cooperative societies which are members of KYDEP, as the Greek Government docs not deny. In my view there is no ground for doubting the accuracy or the information contained in the version produced by the Commission.

16 Annex XVII to the application.

17 See in this respect the letter of 10 August 1983 from the millers' federation, produced as Annex XVIIa to the application, together with the two contracts concluded between KYDEP and private traders in January and February 1983 concerning sale of common wheat from the 1982 harvest, cf. note 12.

18 Annex XI to the application.

19 Finally it may be mentioned that in addition the analytical report concerning KYDEP's accounts for 1988 refer to the second contract... signed with the millers in August 1984. However, it is not quilt' clear whether this is an actual programme contract or whether it refers to a contract concluded by KYDEP with the millers in connection with the contract under _hich KYDEP itself undertook to arrange for 400000 tonnes of common wheat to be processed and exported; in that connection see below.

20 Annex IV to the application.

21 Annex XIII to the applicalion.

22 The decision was produced by the Greek Government. It concerns mainly cereals from the 1987 harvest, but contains on p. 3 a section with the heading: Covering KYDEP's deficit resulting from the sale of common wheat from the 1985 harvest.

23 In the internal memorandum of 16 April 1984, Annex XI to the application, it is stated that for the period from 10 April to 30 June 1984, 132000 tonnes of common wheat were to be withdrawn from KYDEP's stores in connection with KYDEP's milling of flour under the programme contract.

24 See the Court's judgment in Case 272/86 Commission v Greece [1988] ECR 4875 at paragraph 21.

25 As may be seen from the quotation, the report (see Annex X to the application) states that 346000 tonnes of wheat were delivered into intervention and not only 340000 tonnes, as stated in the Commission's claim. In its application the Commission quotes the report correctly and it seems that the restriction of the claim to 340000 tonnes must have been due to a clerical error. Nevertheless, the Court should in my view restrict its decision to the quantity stated in the claim.

26 See note 14 in this connection.

27 Sec note 1.

28 See in this rcspcci the Court's judgment in Case C-35/88, in which the Court declared: In its answers to the questions put by the Court, the Commission also referred to non-compliance with Article 24 of Regulation No 2727/75... These complaints against the Hellenic Republic relate, as the Commission itself stated during the prc-liiigation stage and in its pleadings, to the alleged failure to comply with the duly of cooperation under the first paragraph of Article 5 of the Treaty. Accordingly, they will be considered under this separate beati of complaint (paragraph 32).