Opinion of Advocate General Van Gerven delivered on 19 January 1994
1 Original language: Dutch.
3 Regulation of 29 November 1979, OJ 1979 L 317, p. 1.
4 Regulation of 27 November 1987, OJ 1987 L 351, p. 1.
5 It is not completely clear what the interpretation of Regulation No 2730/79 has to do with this case. That regulation was repealed by Article 50 of Regulation No 3665/87 with effect from 1 January 1988, that is to say, before the export transactions at issue took place. Neither do the transitional rules, under which Regulation No 2730/79 is to continue to apply to exports, the export declarations for which were accepted before the entry into force of [Regulation No 3665/87] (first indent of Article 50 of Regulation No 3665/87), seem to me to be applicable in this case.
6 Commission Regulation (EEC) No 1569/77 of 11 July 1977 fixing the procedure and conditions for the taking over of cereals by intervention agencies, OJ 1977 L 174, p. 15.
7 For a fuller account of those measures I would refer to my Opinion in KYDEP v Commission and Council, C-146/91, judgment of 15 September 1994, not yet published in the ECR, sections 4 to 11.
8 Commission Recommendation 86/156/EEC of 6 May 1986 addressed to the Member States concerning the coordination of national measures taken in respect of agricultural products as result of radioactive fallout from the Soviet Union, OJ 1986 L 118, p. 28.
9 Council Regulation (EEC) No 1388/86 of 12 May 1986 on the suspension of the import of certain agricultural products originating in certain third countries, OJ 1986 L 127, p. 1. The products in question originated in Bulgaria, Czechoslovakia, Hungary, Poland, Romania, the Soviet Union and Yugoslavia.
10 OJ 1986 L 146, p. 88. The detailed implementing rules were laid down by Commission Regulation (EEC) No 1762/86 of 5 June 1986, OJ 1986 L 152, p. 41.
11 By Council Regulation (EEC) No 3020/86 of 30 September 1986 extending Regulation (EEC) No 1707/86 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station, OJ 1986 L 280, p. 79.
12 By Council Regulation (EEC) No 624/87 of 27 February 1987 extending Regulation (EEC) No 1707/86 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power station, OJ 1987 L 58, p. 101 (corrigendum in OJ 1987 L 62, p. 31)
13 Council Regulation (EEC) No 3955/87 of 22 December 1987 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station, OJ 1987 L 371, p. 14.
14 See Article 7. The regulation entered into force on 30 December 1987, that is to say, on the date when it was published in the Official Journal (Article 8).
15 OJ 1987 L 371, p. 11.
16 Telex No VS-S-1/1187/86/D1/GG/G8, signed by Mr Legras, Director-General responsible for agriculture.
17 Commission Regulation (EEC) No 3494/88 of 9 November 1988 amending Regulations (EEC) No 3154/85 laying down detailed rules for the administrative application of monetary compensatory amounts, (EEC) No 548/86 laying down detailed rules for the application of accession compensatory amounts and (EEC) No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, OJ 1988 L 306, p. 24.
18 Commission Regulation (EEC) No 2751/88 of 2 September 1988 on a special intervention measure for durum wheat in Greece, OJ 1988 L 245, p. 13.
19 Regulation (EEC) No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals (OJ 1975 L 281, p. 1), repealed as from the 1993-1994 marketing year and replaced by Council Regulation (EEC) No 1766/92 of 30 June 1992 (OJ 1992 L 181, p. 21).
20 According to the national court's order, 14000 tonnes of Greek wheat was loaded between 12 and 18 April 1988 (Declaration No 502/88); 7000 tonnes of French wheat was loaded between 18 and 20 April 1988 (Declaration No 503/88); a mixture of 11000 tonnes of Greek wheat and 17500 tonnes of French wheat was loaded between 20 April and 5 May 1988 (Declaration No 536/88), followed, finally, by 5500 tonnes of French wheat (Declaration No 643/88). The requisite loading authorizations were dated 18 April, 20 April, 6 May and 9 May 1988 respectively.
21 Council Directive 81/177/EEC of 24 February 1981 on the harmonization of procedures for the export of Community goods, OJ 1981 L 83, p. 40.
22 Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299.
23 My emphasis. Confirmed by the judgments in Case 217/81 Interagra [1982] ECR 2233, paragraph 8, and in Case 109/83 Eurico [1984] ECR 3581, paragraph 20. See also the orders in Case 151/88 Italy v Commission [1989] ECR 1255, paragraph 22, in Case C-50/90 Sunzest [1991] ECR I-2917, paragraph 13, and in Joined Cases C-66/91 and C-66/91 R Emerald Meats [1991] ECR I-1143, paragraph 30.
24 Cf. the item all other nuclides of half-life greater than 10 days, notably Cs-134, Cs-137 under the heading other foodstuffs except minor foodstuffs. The other items falling under that heading set out maximum permitted levels of between 80 and 2000 Bq/kg.
25 See Article 5(2)(b) of 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).
26 See section 20 of the Opinion.
27 Under Article 5 of Regulation No 3954/87, the maximum permitted levels laid down in the annex, including the threshold of 1250 kg/Bq, may be revised or supplemented at the request of a Member State or the Commission.
28 Ellinika Dimitriaka argues at the same time that the Commission had no competence to adopt Regulation No 3494/88. Since none of the questions referred for a preliminary ruling relate to that regulation, which, moreover, was not in force at the time when the export transactions at issue were carried out, I shall not consider this argument further.
29 See section 17 of my Opinion in KYDEP.
30 The rules applicable with regard to radioactivity are an integral part of the criteria for cereal quality for intervention purposes laid down by Regulation No 1569/77: cf. section 21 of ray Opinion in the KYDEP case.
31 See the judgments in Case 112/77 Töpfer v Commission [1978] ECR 1019, paragraph 19, in Joined Cases 205/82 to 215/82 Deutsche Milchkontor v Germany [1983] ECR 2633, paragraph 30, and in Case C-163/90 Legros [1992] ECR I-4625, paragraph 30. In addition to the principle of legitimate expectations, the Court also applies the general principle of respect for acquired rights, as appears from, for example, the judgment in Case 84/78 Tomadini v Amministrazione delle Finanze dello Stato [1979] ECR 1801, paragraph 25.
32 Judgment in Töpfer v Commission, paragraph 19, at 1033.
33 See, in particular, the judgments in Case 5/73 Balkan Import-Export [1973] ECR 1091, paragraph 22, in Joined Cases 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78 and 264/78, 39/79, 31/79, 83/79 and 85/79 Ferriera Valsabbia v Commission [1980] ECR 907, paragraph 118, and in Joined Cases 26/79 and 86/79 Forges de Thy-Marcinelle and Monceau v Commission [1980] ECR 1083, paragraph 6.
34 See, in particular, the judgment in Case 204/87 Criminal proceedings against Guy Bekaert [1988] ECR 2029, paragraph 5.
35 Cited in footnote 30.
36 This is by analogy with the Court's ruling in its judgment of 18 June 1991 in Case C-260/89 ERT [1991] ECR I-2925, paragraphs 42 to 45, in which it recognized that the national court has the power and the duty to review the compatibility with all the rules of Community law, including general principles of law, of national rules coming within the field of application of Community law.
37 The quotations are from the first and fifth recitals in the preamble to Regulation No 2751/88.
38 In my view, that obligation is enshrined in Article 5 of the EC Treaty and is more explicitly defined with regard to fraud in Article 209a of the EC Treaty and in indent 5 of Article K. 1 of the Treaty on European Union.