Avis juridique important

Order of the President of the Court of 24 September 1986. - Hellenic Republic v Commission of the European Communities. - EAGGF, Guarantee Section - Clearance of accounts. - Case 214/86 R. European Court reports 1986 Page 02631

Parties Subject of the case Grounds Operative part

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - CONDITIONS FOR GRANTING - SERIOUS AND IRREPARABLE DAMAGE

( EEC TREATY , ART . 185 ; RULES OF PROCEDURE , ART . 83 ( 2 ))

IN CASE 214/86 R

HELLENIC REPUBLIC , REPRESENTED BY ITS AGENTS , V . ZORBAS , LEGAL ASSISTANT IN THE MINISTRY OF ECONOMIC AFFAIRS , AND M . TSOTSANIS , LEGAL ADVISER IN THE MINISTRY OF AGRICULTURE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR GIANNOPOULOS , AMBASSADOR OF GREECE , 117 , VAL-SAINTE-CROIX ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS AGENTS , T . CHRISTOFOROU AND D . G . LAWRENCE , MEMBERS OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , JEAN MONNET BUILDING ,

DEFENDANT ,

APPLICATION FOR SUSPENSION OF THE OPERATION OF COMMISSION DECISION 86/475 OF 20 JUNE 1986 ON THE CLEARANCE OF THE ACCOUNTS PRESENTED BY THE HELLENIC REPUBLIC IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND , GUARANTEE SECTION , EXPENDITURE FOR 1982 ( OFFICIAL JOURNAL 1986 , L 256 , P . 24 ),

THE PRESIDENT OF THE COURT OF JUSTICE

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 6 AUGUST 1986 , THE HELLENIC REPUBLIC BROUGHT AN ACTION UNDER THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT DECISION 86/475 , WHICH WAS ADOPTED BY THE COMMISSION ON 20 JUNE 1986 UNDER ARTICLE 5 ( 2 ) OF REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ). IN THAT DECISION , THE COMMISSION STATED THAT ONLY DR 36 430 369 938 , OUT OF A TOTAL OF DR 44 625 397 022 DECLARED BY THE HELLENIC REPUBLIC IN RESPECT OF THE 1982 FINANCIAL YEAR , COULD BE RECOGNIZED AS CHARGEABLE TO THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND , GUARANTEE SECTION . IT THEREFORE REFUSED TO CHARGE TO THE EAGGF , GUARANTEE SECTION , IN RESPECT OF THE 1982 FINANCIAL YEAR , THE AMOUNT CORRESPONDING TO THE DIFFERENCE BETWEEN THOSE TWO AMOUNTS , NAMELY DR 8 195 017 084 .

2 THE DECISION ALSO STATES THAT WITH REGARD TO PART OF THE EXPENDITURE DISALLOWED , NAMELY AN AMOUNT OF DR 4 804 749 681 PAID BY THE HELLENIC REPUBLIC IN RESPECT OF AID GRANTED BY THE HELLENIC REPUBLIC ON THE EXPORTATION OF ITS AGRICULTURAL PRODUCTS , THE COMMISSION HAS NOT ADOPTED A FINAL DECISION IN THE CONTEXT OF THE CLEARANCE OF ACCOUNTS IN REGARD TO EXPENDITURE FOR 1982 BUT WILL DO SO UNDER THE 1983 ACCOUNTS CLEARANCE PROCEDURE ON THE BASIS OF THE NECESSARY EVIDENCE CONCERNING THAT AMOUNT WHICH THE HELLENIC REPUBLIC IS TO SUBMIT TO THE COMMISSION WITHIN SIX WEEKS FROM THE NOTIFICATION OF THE DECISION .

3 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 6 AUGUST 1986 , THE APPLICANT REQUESTED THE COURT , PURSUANT TO ARTICLE 185 OF THE EEC TREATY , ARTICLE 36 OF THE STATUTE OF THE COURT OF JUSTICE AND ARTICLE 83 OF THE RULES OF PROCEDURE , TO SUSPEND THE OPERATION OF COMMISSION DECISION 86/475 UNTIL THE 30TH DAY FOLLOWING SERVICE OF THE COURT ' S JUDGMENT ON THE MAIN APPLICATION .

4 IN A TELEX MESSAGE OF 20 AUGUST 1986 , THE COURT PUT A QUESTION TO THE DEFENDANT AND REQUESTED IT TO SUBMIT ITS REPLY IN WRITING BEFORE 21 AUGUST 1986 .

5 BY AN ORDER OF 25 AUGUST 1986 MADE UNDER ARTICLE 84 ( 2 ) OF THE RULES OF PROCEDURE , THE PRESIDENT OF THE COURT ORDERED , AS A PRECAUTIONARY MEASURE , IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE , THE SUSPENSION , UNTIL THE ORDER TERMINATING THE APPLICATION FOR INTERIM MEASURES IN CASE 214/86 R HAD BEEN MADE , OF THE OPERATION OF DECISION 86/475 , WHICH WOULD OTHERWISE HAVE BEEN IMPLEMENTED BY MEANS OF THE DECISION CONCERNING THE ADVANCE PAYMENT FOR SEPTEMBER , ADOPTED BY THE COMMISSION ON 19 AUGUST 1986 .

6 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 29 AUGUST 1986 . THE PARTIES PRESENTED ORAL ARGUMENT ON FRIDAY 19 SEPTEMBER 1986 .

7 BEFORE CONSIDERING WHETHER THIS APPLICATION FOR INTERIM MEASURES IS WELL FOUNDED AND IN ORDER TO PERMIT A FULLER EXAMINATION OF THE PROBLEM RAISED , IT MUST FURTHER BE STATED THAT THE VARIOUS GROUNDS ON WHICH THE COMMISSION REFUSED TO CHARGE AN AMOUNT OF DR 8 195 027 084 TO THE EAGGF , GUARANTEE SECTION , ARE SET OUT IN DETAIL IN THE SUMMARY REPORT CONTAINING CONCLUSIONS FROM THE PRELIMINARY WORK FOR THE CLEARANCE OF THE EAGGF , GUARANTEE SECTION , ACCOUNTS FOR THE YEAR 1982 ( VI/800/85-EN REV . 1 OF 20 MARCH 1986 ) AND THAT THE VALIDITY OF ONLY THREE OF THOSE GROUNDS IS CONTESTED BY THE APPLICANT .

8 THE THREE CONTESTED GROUNDS ARE THE FOLLOWING :

( I ) THE HELLENIC REPUBLIC GRANTED EXPORT AID FOR ITS AGRICULTURAL PRODUCTS WHICH THE COMMISSION , IN DECISION 85/1344 OF 17 JULY 1985 , CONSIDERED INCOMPATIBLE WITH THE COMMON MARKET ( POINT 3.1.15 OF THE SUMMARY REPORT );

( II)THE QUALITY OF DURUM WHEAT BOUGHT INTO INTERVENTION IN GREECE DURING THE 1981/82 AND 1982/83 MARKETING YEARS DID NOT CORRESPOND TO THE REQUIREMENTS LAID DOWN IN COMMUNITY RULES ( POINT 3.2.5 OF THE SUMMARY REPORT );

( III)47 000 TONNES OF DURUM WHEAT WERE AWARDED TO AN EXPORTER WHO DID NOT FULFIL THE CONDITIONS OF TENDER AT THE TIME OF SALE ( POINT 3.2.6 OF THE SUMMARY REPORT ).

9 ACCORDING TO ARTICLE 185 OF THE EEC TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE SHALL NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED .

10 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE REQUIRES , AS A CONDITION FOR THE GRANT OF AN INTERIM MEASURE SUCH AS THAT REQUESTED , THAT THE APPLICATION SHALL STATE THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR AND THE CIRCUMSTANCES GIVING RISE TO URGENCY .

11 THE COURT HAS CONSISTENTLY HELD THAT THE URGENCY OF AN APPLICATION FOR INTERIM MEASURES , REFERRED TO IN ARTICLE 83 ( 3 ) OF THE RULES OF PROCEDURE , MUST BE ASSESSED IN THE LIGHT OF THE EXTENT TO WHICH AN INTERLOCUTORY ORDER IS NECESSARY TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY REQUESTING THE INTERIM MEASURE .

12 IN THAT CONNECTION , THE APPLICANT PUTS FORWARD TWO SUBMISSIONS WHICH , IN ITS VIEW , SHOW CLEARLY THAT , BECAUSE THE AMOUNTS WHICH THE COMMISSION HAS REFUSED TO CHARGE TO THE EAGGF , GUARANTEE SECTION , ARE CONSIDERABLE , IMMEDIATE IMPLEMENTATION OF THE CONTESTED DECISION WOULD CAUSE IT SERIOUS AND IRREPARABLE DAMAGE . IT CLAIMS FIRST THAT IMMEDIATE IMPLEMENTATION WOULD CAUSE IRREPARABLE DAMAGE TO PLANNED EXPORTS OF GREEK AGRICULTURAL PRODUCTS , IN SO FAR AS THE EXPORTERS WOULD BE REQUIRED EITHER TO SELL AT A HIGHER PRICE OR TO CANCEL CONTRACTS ALREADY CONCLUDED , SINCE THE SELLING PRICE WOULD HAVE CEASED TO BE ADVANTAGEOUS FOR THEM . IT ALSO EMPHASIZES THAT SUCH IMPLEMENTATION WOULD DIRECTLY COMPROMISE THE EXTERNAL FINANCIAL STABILITY OF THE HELLENIC REPUBLIC AND WOULD INCREASE THE DETERIORATION IN THE BALANCE OF PAYMENTS EVEN THOUGH IN DECISION 85/594 OF 22 NOVEMBER 1985 ( OJ , L 373 , P . 9 ) THE COMMISSION AUTHORIZED THE APPLICANT TO TAKE SAFEGUARD MEASURES UNDER ARTICLE 108 ( 3 ) OF THE TREATY .

13 FOR ITS PART , THE COMMISSION IS OF THE OPINION THAT THE SUBMISSIONS ADVANCED BY THE APPLICANT ON THE SUBJECT OF SERIOUS AND IRREPARABLE DAMAGE ARE VAGUE AND GENERAL IN NATURE AND ARE NOT CAPABLE OF ESTABLISHING THE URGENCY OF THE APPLICATION TO SUSPEND THE OPERATION OF DECISION 86/475 . IT STRESSES IN THAT REGARD THAT THE RIGHT OF GREEK TRADERS TO HAVE THEIR EXPORTS FINANCED IS AN ENTIRELY INDEPENDENT RIGHT WHICH IS NOT AFFECTED BY THE DEDUCTION OF THE AMOUNT OF THE DISALLOWED EXPENDITURE FROM THE ADVANCES PAID TO THE HELLENIC REPUBLIC BY THE EAGGF , GUARANTEE SECTION , SINCE THE HELLENIC REPUBLIC IS UNDOUBTEDLY CAPABLE OF PROVIDING THAT AMOUNT OUT OF ITS NATIONAL BUDGET . IT THEREFORE CONSIDERS THAT EVEN IF SUCH A DEDUCTION IS MADE , EXPORTS OF GREEK AGRICULTURAL PRODUCTS WILL BE CARRIED OUT NORMALLY , AS ORIGINALLY PLANNED . MOREOVER , RELYING MUTATIS MUTANDIS ON THE ARGUMENTS SET OUT BY THE PRESIDENT OF THE COURT IN HIS ORDER OF 6 FEBRUARY 1986 ( CASE 310/85 R , DEUFIL V COMMISSION ( 1986 ) ECR 537 ), IT EXPRESSES DOUBTS AS TO WHETHER IMPLEMENTATION OF THE CONTESTED DECISION COULD DIRECTLY COMPROMISE THE EXTERNAL FINANCIAL STABILITY OF THE HELLENIC REPUBLIC SINCE THE AMOUNT WHICH WOULD BE DEDUCTED WOULD BE NEGLIGIBLE IN RELATION TO THE BALANCE OF PAYMENTS AND GENERAL FINANCIAL CAPACITY OF THE GREEK STATE .

14 MOREOVER , IT STRESSES THAT IN ANY EVENT , IN ACCORDANCE WITH THE COURT ' S DECISIONS ON THIS POINT ( SEE IN PARTICULAR THE ORDER OF THE COURT OF 21 MAY 1977 IN JOINED CASES 31/77 R AND 53/77 R , COMMISSION V UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ( 1977 ) ECR 921 , AND THE ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF 22 MAY 1980 IN CASE 33/80 R , ALBINI V COUNCIL AND COMMISSION ( 1980 ) ECR 1671 ) ANY DAMAGE WHICH THE APPLICANT CLAIMS THAT IT WILL SUFFER IS NOT IRREPARABLE BECAUSE IT CAN BE COMPENSATED FOR IN ITS ENTIRETY SINCE , SHOULD THE COURT DECLARE THE CONTESTED DECISION VOID , THE COMMISSION WOULD PAY TO THE APPLICANT THE FULL AMOUNT WHICH HAD BEEN DEDUCTED .

15 HAVING REGARD TO THE FACTORS SET OUT ABOVE AND TO THE DISAGREEMENT WHICH AROSE BETWEEN THE PARTIES ON THAT SUBJECT AT THE HEARING , IT WOULD APPEAR TO BE NECESSARY FIRST TO DETERMINE THE PRECISE AMOUNT WHICH IS AT ISSUE IN THIS APPLICATION FOR INTERIM MEASURES .

16 IN THAT REGARD , IT MUST BE STATED THAT , AS THE APPLICANT HAS EMPHASIZED , IT CAN BE SEEN FROM THE FIFTH RECITAL IN THE PREAMBLE TO DECISION 86/475 THAT IN RESPECT OF PART OF THE DISALLOWED EXPENDITURE , NAMELY AN AMOUNT OF DR 4 804 749 681 IN RESPECT OF AID GRANTED BY THE HELLENIC REPUBIC FOR THE EXPORTATION OF ITS AGRICULTURAL PRODUCTS , THE COMMISSION DID NOT ADOPT A FINAL DECISION DURING THE 1982 ACCOUNTS CLEARANCE PROCEDURE . THAT RECITAL READS AS FOLLOWS :

' WHEREAS THE EXPENDITURE DISALLOWED INCLUDES AN AMOUNT OF DR 4 804 749 681 FOR REFUNDS AND ACCESSION COMPENSATORY AMOUNTS , IN RESPECT OF WHICH NO FINAL DECISION COULD BE TAKEN DURING THE PRESENT ACCOUNTS CLEARANCE PROCEDURE BECAUSE OF THE PAYMENT OF AIDS BY GREECE IF THE GOODS ARE EXPORTED . SUCH EXPENDITURE , OR A PART THEREOF , MAY STILL BE FINANCED BY THE EAGGF UNDER THE 1983 ACCOUNTS CLEARANCE PROCEDURE , PROVIDED THAT GREECE PROVIDES THE NECESSARY EVIDENCE AT LATEST SIX WEEKS AFTER NOTIFICATION OF THIS DECISION . '

IT IS THEREFORE DIFFICULT TO SEE HOW DECISION 86/475 CONCERNING THE 1982 FINANCIAL YEAR COULD BE IMPLEMENTED IN RESPECT OF AN AMOUNT IN REGARD TO WHICH A FINAL DECISION WILL ONLY BE ADOPTED UNDER THE 1983 ACCOUNTS CLEARANCE PROCEDURE .

17 IT MUST THEREFORE BE CONSIDERED THAT THE AMOUNT AT ISSUE IN THIS CASE IS THAT WHICH RESULTS FROM THE DIFFERENCE BETWEEN THE TOTAL AMOUNT OF THE EXPENDITURE DISALLOWED BY THE COMMISSION , NAMELY DR 8 195 027 084 , AND DR 4 804 749 681 , THAT IS TO SAY , DR 3 390 277 403 , AND ONLY THE LATTER AMOUNT COULD BE DEDUCTED BY THE COMMISSION PURSUANT TO DECISION 86/475 IF THE APPLICATION FOR INTERIM MEASURES WAS DISMISSED .

18 FURTHERMORE , AS HAS BEEN STATED IN PARAGRAPHS 7 AND 8 OF THIS ORDER , THE APPLICANT CHALLENGES THE LEGALITY OF ONLY THREE OF THE EIGHT GROUNDS ON WHICH THE COMMISSION REFUSED TO CHARGE AN AMOUNT OF DR 8 195 027 084 TO THE EAGGF , GUARANTEE SECTION . AT THE HEARING , THE COMMISSION EXPLAINED , WITHOUT BEING CONTRADICTED BY THE APPLICANT , THAT THOSE THREE GROUNDS RELATED TO ONLY ABOUT DR 7 700 000 000 OUT OF THE DR 8 195 027 084 MENTIONED ABOVE . THAT IS THEREFORE THE AMOUNT WHICH WOULD HAVE TO BE TAKEN AS THE BASIS OF CALCULATION IF THE REQUESTED SUSPENSION OF THE OPERATION OF THE DECISION WERE GRANTED .

19 IT MUST NEXT BE DETERMINED WHETHER THE IMPLEMENTATION OF DECISION 86/475 IN RESPECT OF AN AMOUNT OF DR 3 390 277 403 IS LIKELY TO CAUSE SERIOUS AND IRREPARABLE DAMAGE TO THE APPLICANT .

20 IN THAT REGARD , IT MUST BE ACCEPTED , AS THE COMMISSION HAS RIGHTLY POINTED OUT , THAT IT IS DIFFICULT TO SEE HOW IMPLEMENTATION OF THE CONTESTED DECISION , WITHIN THE LIMITS DESCRIBED ABOVE , COULD COMPROMISE THE EXTERNAL FINANCIAL STABILITY OF THE APPLICANT . THE LATTER STATED AT THE HEARING THAT ITS EXTERNAL DEFICIT AT 31 DECEMBER 1985 WAS USD 3 300 000 000 . IF THAT FIGURE IS COMPARED WITH USD 30 000 000 , WHICH IS THE APPROXIMATE EQUIVALENT IN DOLLARS OF DR 3 390 277 403 , IT CAN BE SEEN THAT THE LATTER CONSTITUTES ONLY A MINUTE PROPORTION , NAMELY LESS THAN 1% , OF THE APPLICANT ' S EXTERNAL DEFICIT IN 1985 AND CANNOT BE REGARDED AS LIKELY TO CAUSE THE APPLICANT SERIOUS DAMAGE IF IT WERE DEDUCTED IN A DECISION TO BE ADOPTED BY THE COMMISSION FIXING THE AMOUNT OF ADVANCE PAYMENTS TO BE MADE UNDER THE COMMON AGRICULTURAL POLICY .

21 FURTHERMORE , AS CAN BE SEEN FROM A LONG LINE OF DECISIONS OF THE COURT ( SEE , IN PARTICULAR , THE ORDER OF THE COURT IN JOINED CASES 31/77 R AND 53/77 R , COMMISSION V UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND , CITED ABOVE , AND THE ORDER OF THE PRESIDENT OF THE COURT OF 19 JULY 1983 IN CASE 120/83 R , RAZNOIMPORT V COMMISSION ( 1983 ) ECR 2573 ) THE DAMAGE SUFFERED BY THE APPLICANT BECAUSE OF THAT DEDUCTION CANNOT BE REGARDED AS IRREPARABLE BECAUSE THE COMMISSION WOULD BE REQUIRED TO PAY IT THE FULL AMOUNT DEDUCTED IF , AT THE END OF THE MAIN PROCEEDINGS , THE COURT FOUND IN FAVOUR OF THE APPLICANT .

22 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT HAS NOT PUT FORWARD ANY CONCLUSIVE ARGUMENT SHOWING THAT THE IMPLEMENTATION OF DECISION 86/475 IN RESPECT OF AN AMOUNT OF DR 3 390 277 403 WOULD CAUSE IT TO SUFFER SERIOUS AND IRREPARABLE DAMAGE .

23 SINCE THE APPLICANT HAS NOT SUCCEEDED IN ESTABLISHING THE URGENCY REQUIRED BY ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE , IT WOULD NOT APPEAR TO BE NECESSARY TO CONSIDER WHETHER THE FACTUAL AND LEGAL GROUNDS ON WHICH IT RELIES ESTABLISH A PRIMA FACIE CASE FOR THE INTERIM MEASURE APPLIED FOR .

ON THOSE GROUNDS ,

THE PRESIDENT

BY WAY OF INTERIM DECISION

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION FOR SUSPENSION OF THE OPERATION OF THE AFORESAID COMMISSION DECISION 86/475 OF 20 JUNE 1986 IS DISMISSED AS REGARDS THE AMOUNT MENTIONED IN PARAGRAPH 19 OF THIS ORDER , NAMELY DR 3 390 277 403 .

( 2)AS REGARDS THE AMOUNT OF DR 4 804 749 681 MENTIONED IN PARAGRAPHS 16 AND 17 OF THIS ORDER , THE COMMISSION SHALL REFRAIN FROM ALL MEASURES OF ENFORCEMENT SINCE COMMISSION DECISION 86/475 CONTAINS NO FINAL DECISION IN REGARD TO THE SAID AMOUNT .

( 3)THIS ORDER CANCELS AND REPLACES THE ORDER OF 25 AUGUST 1976 .

( 4)COSTS ARE RESERVED .