Opinion of Advocate General

Mr President,

Members of the Court,

1. In this case the Commission seeks from the Court a declaration that, by applying higher rates of tax to private cars incorporating traditional technology imported from other Member States than are applied to similar private cars produced or assembled in Greece, the Hellenic Republic has failed to fulfil its obligations under Article 95 of the EEC Treaty.

2. In order to appreciate the scope of the charges and the defence arguments put forward by the Greek Government, it is necessary to describe, albeit briefly, the national legislation at issue and the course of the pre-litigation procedure.

3. Considering that that legislation infringed Article 95 of the EEC Treaty, the Commission sent the Greek authorities formal notice on 14 December 1989. Since it received no reply, it issued an reasoned opinion on 16 March 1990 in which it repeated the charge.

4. The Commission considered that after the change in the legislation, albeit effected within the period of one month prescribed by the reasoned opinion, imported products were still discriminated against, and decided to bring an action before the Court for a declaration that the Hellenic Republic had failed to fulfil its obligations.

5. I shall say forthwith that, having regard to the matters before the Court, the objection raised by the Greek Government is excessively formalistic.

6. In the light of that case-law, I do not consider that a change in the subject-matter of the proceedings can genuinely be said to have occurred in this case.

7. Turning to the substance, I do not consider that protracted discussion is necessary, since the infringement of Article 95 of the Treaty seems, in my view, to be manifest.

8. Comparison of the various possibilities contemplated by the two laws shows clearly, first, that imported cars incorporating traditional technology suffer discrimination and, secondly, that the discrimination continued and even worsened following the entry into force of the new legislation.

9. Nor do I consider that the justifications put forward by the Greek Government are such as to change the essence of the issue. It argues that the contested transitional provisions constitute State action aimed at offsetting the competitive disadvantage suffered by domestic products compared with imported products. It adds that domestic production covers only 10% of total domestic demand and that in any event Article 42 of Law No 1882/1990 was no longer applied as from 30 April 1991, since at that date the domestic car industry had adapted to the new antipollution provisions.

10. Having regard to the foregoing considerations, I therefore propose that the Court should:

1 Original language: Italian.

2 Judgment in Case 113/86 Commission v Italy [1988] ECR 607, paragraph 11; judgment in Case 42/82 Commission v France [1983] ECR 1013, paragraph 20.

3 Judgment in Case 45/64 Commission v Italy [1965] ECR 857.

4 Judgment in Case C-42/89 Commission v Belgium [1990] ECR I-2821, paragraphs 9, 10 and 11.

5 See, in particular, the judgments in Case 168/78 Commission v France [1980] ECR 347, paragraph 4, in Case 169/78 Commission v Italy [1980] ECR 385, paragraph 4, and in Case 171/78 Commission v Denmark [1980] ECR 447, paragraph 4.

6 Judgment in Case 20/76 Schüttle v Finanzamt Freudenstadt [1977] ECR 247, paragraph 22.