Opinion of the Advocate General — ECLI:EU:C:2002:658
Date: 2002-11-14
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Taxation;Free movement of goods;Approximation of laws;Freedom to provide services;Internal taxation
Procedure: Reference for a preliminary ruling
Origin: Greece

summary, it is clear from the foregoing that the ELGA does not carry out an economic activity and consequently, that body does not constitute an undertaking within the meaning of Article 87 EC. (b) To what extent do benefits paid by the ELGA constitute an advantage for the producers? (i) Submissions of the parties 73. In response to a written question from the Court, the parties submitted observations at the hearing on the extent to which the benefits paid to the producers by the ELGA are covered by aid within the meaning of Article 92 of the EC Treaty (now Article 87 EC). 74. At the hearing, the Commission expressed the view that the benefits paid to the producers by the ELGA are aids granted by States because they constitute an advantage for the beneficiaries. In contrast, the Greek Government pointed out that there is no advantage for the producers in so far as, in the final analysis, the benefits paid by the ELGA constitute consideration for participation in a system based on national solidarity. (ii) Legal assessment 75. When examining whether the benefits paid by the ELGA to farmers constitute aid, what must be determined in particular is whether they give the beneficiary an unfair cost advantage. There can scarcely be any doubt, however, that such benefits constitute a financial advantage and that they are paid from State funds, if only because the contributions are recorded as State income. The selective nature of the measure is apparent from the fact that the benefits paid by the ELGA are reserved for domestic undertakings. 76. Unlike the Commission, I think it very doubtful that the benefits paid by the ELGA can be seen as an unfair cost advantage. What must be stressed in this regard is that the benefits are, in the final analysis, financed by the contribution at issue. However, the group of persons who have to pay the contribution is the same as that of the potential beneficiaries. The fact that the benefits in each particular case do not bear any relation to the contributions paid must be regarded not as the granting of an unfair advantage but as the very expression of the principle of solidarity. Moreover, the fact that the consideration for payment of a contribution is not the compensation actually paid but the entitlement to cover, is perfectly consistent with the technique of insurance. It is true that the link between the financing of the insurance system and the benefits derived from that system would be clearer if the insurance body - the ELGA in the present case - imposed the contributions itself. However, from an economic point of view, it makes no difference whether the insurance contribution is imposed by the ELGA or by the State. 77. A different conclusion could be justified only if the benefits paid by the ELGA were not financed essentially from the income from the insurance contribution. (30) In that event, the benefits paid to the insured farmers could no longer be considered to be financed by contributions. (31) V - Conclusion 78. I therefore propose that the Court: Declare that Articles 28 EC, 29 EC, 49 EC, 50 EC and 87 EC, Regulation (EEC) No 2777/75 of the Council on the common organisation of the market in poultrymeat and the First Council Directive 73/239/EEC on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance do not in principle prohibit the imposition of an insurance contribution on domestically-produced agricultural products and by-products of vegetable or animal origin or originating from fishing by the competent public finance service or the paying of the corresponding income to a State organisation for the purpose of organising and implementing programmes of proactive protection and insuring the production and assets of agricultural enterprises. However, it is for the national court to establish whether the national legislation at issue adversely affects the mechanisms of the organisation of the market in poultrymeat established by Regulation (EEC) No 2777/75 of the Council, in particular as a result of an increase from third countries in imports of the products concerned, which is detrimental to the market. 1: - Original language: German. 2: - ... on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (73/239/EEC) (the First Non-Life Assurance Directive) OJ 1973 L 228, p. 3). 3: - FEK (Official Gazette) A' 134. 4: - FEK A' 70. 5: - ... of 10 December 1984 amending, particularly as regards tourist assistance, the First Directive (73/239/EEC) on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1984 L 339, p. 21). 6: - ... of 29 October 1975 on the common organisation of the market for poultrymeat (OJ 1975 L 282, p. 77). 7: - They refer to Case 51/74 Van der Hulst's Zonen [1975] ECR 79, and Case 83/78 Pigs Marketing Board [1978] ECR 2347. 8: - ... of 20 July 1999, C (1999) 2536 final. 9: - Joined Cases 36/80 and 71/80 [1981] ECR 735. 10: - See, for example, Van der Hulst (cited in footnote 7), paragraph 25: Once the Community has, pursuant to Article 40 of the Treaty, legislated for establishment of a common organisation of the market in a given sector, Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it. 11: - For instance, in Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Association (cited in footnote 9), the Court held: such incompatibility [with the provisions of the EEC Treaty on agricultural policy, or with Community rules on the common organisation of the markets] would, however, exist if and in so far as the duty had the effect of impeding the proper functioning of the machinery established as part of the relevant common organisations for the formation of common prices and to regulate market supplies. 12: - Under Article 33(1) EC, stabilisation of the markets is one of the objectives of the common agricultural policy. 13: - Cited in footnote 9. 14: - Irish Creamery Milk Suppliers Association (cited in footnote 9) clearly concerned a contribution which was imposed only on specific products. 15: - With regard to profit-making where social insurance organisations are concerned - albeit in connection with the definition of an undertaking - see also Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, paragraph 18 et seq. 16: - See, for example, Case C-55/96 Job Centre [1997] ECR I-7119. See also Case C-266/96 Corsica Ferries II [1998] I-3949. See, in this respect, Blum/Logue, State Monopolies under EC Law, p. 137 et seq. and, by way of criticism, see Holoubeck, in Schwarze EU-Kommentar (EU Commentary), Article 49 EEC, paragraph 87, with further references. 17: - Reference need only be made to Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 30. 18: - Order in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 14. 19: - Order in Case C-422/98 Colonia Versicherung and Others [1999] ECR I-1279, paragraph 5. 20: - Order in Case C-167/94 Gran Gomis and Others [1995] I-1023, paragraph 9. 21: - In this connection see also the careful choice of words in a memorandum dated 15 February 2002 from the Spanish presidency to the Council, concerning agricultural insurance for the prevention of risks in the areas of agriculture and cattle rearing: L'expérience montre que, laissée à l'initiative privée, l'implantation des systèmes d'assurance agricole est très limitée. 22: - They refer in particular to Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21, and Poucet and Pistre (cited in footnote 15), paragraph 17. 23: - Case C-218/00 Cisal [2002] ECR I-691. 24: - See inter alia Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 22. See also Hoffner and Elser (cited in footnote 22, paragraph 21), Poucet and Pistre (cited in footnote 15, paragraph 17), Case C-244/94 Fédération française des sociétés d'assurance and Others [1995] ECR I-4013, paragraph 14, and Case C-67/96 Albany [1999] ECR I-5751, paragraph 77, Joined Cases C-115/97 to C-117/97 Brentjens' [1999] ECR I-6025, paragraph 77, and Case C-219/97 Drijvende Bokken [1999] ECR I-6121, paragraph 67. 25: - Cisal (cited in footnote 23), paragraph 23, with further references. 26: - Cisal (cited in footnote 23), paragraph 37. 27: - Cisal (cited in footnote 23), paragraph 44. 28: - A distinction is made only between animal and vegetable products. To change the contribution rate for a particular sector or product, a joint decision by the ministers for finance and for agriculture is required. 29: - In this regard, the Greek Government has also stated that the rate of contribution is set by the competent ministers on the basis of a proposal from the ELGA to the agriculture minister. Any other influence on the rate of contribution or the amount of the compensation payments by the ELGA is clearly not possible. 30: - According to information from the Greek Government, without exception, between 1996 and 2000 over 90% of the income of the ELGA came from the income from the insurance contribution. The ELGA's income from direct additional payments amounted only to between 2.1% and 9.8%. 31: - In the event of the alternative conclusion, Article 87(2)(b) EC makes it clear that benefits to make good the damage caused by natural disasters or exceptional occurrences must in principle be considered as aid.