Opinion of the Advocate General — ECLI:EU:C:1999:611
Date: 1999-12-16
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;European Agricultural Guidance and Guarantee Fund (EAGGF);Oils and fats;Wine;Cotton;Tobacco
Procedure: Action for annulment - unfounded
Origin: Greece

Summary Report No VI/ 
6355/95 of 27 March 1996 'on the results 
of inspections concerning the clearance of 
the EAGGF Guarantee Section accounts for 
1992 and of certain expenditure for 1993' 
(hereinafter 'Summary Report No l'), and 
in two supplements dated 14 June and 
23 September 1996, and in Summary 
Report No W5210/96 of 15 April 1997 
'on the results of inspections concerning the 
clearance of the EAGGF Guarantee Section 
accounts for 1993' (hereinafter 'Summary 
Report No 2'). 
52. Summary Reports Nos 1 and 2 describe 
serious deficiencies in fundamental ele­
ments of the system for managing and 
checking aid for the production of olive oil 
which, as a result, justify the flat-rate 
29 — Fifteenth recital of Regulation No 2261/84. 
30 — OJ 1989 L 14, p. 14. 
I - 5732 
GREECE V COMMISSION' 
corrections of 10% of the expenditure, 
applied during the clearance of the 
accounts for 1992 and 1993. 
53. The main complaints made by the 
Commission involve the absence of an olive 
cultivation register and usable computer­
ised files (particularly due to the different 
types of software used; supply to a single 
file was thus prevented). 
54. In addition, Summary Reports Nos 1 
and 2 describe in detail the inadequacy of 
the alternative controls put in place by the 
Greek authorities instead of those specified 
in the Community regulations [hereinafter 
the 'alternative control(s)']. According to 
the Commission, these alternative controls 
did not enable the risk of fraud to which 
the EAGGF is exposed to be effectively 
combatted. 
55. Thus, in Summary Report No 1, the list 
of defects and deficiencies noted in the 
alternative control system put in place by 
the Hellenic Republic consists of 18 points 
which can be grouped under four headings 
and summarised as follows: 
(1) Lack of coordination between the 
competent local and national offices 
with regard to both the management 
and the checking of aid applications for 
the production of olive oil. The follow­
ing are noted: 
(a) absence of guidelines given to 
inspectors enabling them to verify 
that the quantities of olive oil 
produced actually correspond to 
the quantities declared; 
(b) failure to notify the result of checks 
carried out to Didagep, the Greek 
paying body; 
(c) absence of sufficient staff both to 
ensure everyday management of 
applications for aid for the produc­
tion of olive oil and to check on the 
spot that the amounts declared by 
the applicants for this aid actually 
exist; 
(d) prohibited combination of the 
duties of manager and inspector; 31 
3 1 — In other words, the staff granting financing after having 
verified the content of the aid application tiles are the same 
as those checking on the spot that the applications are real. 
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OPINION OF MR LÉGĽR — CASES C-46/97 AND C-243/97 
(e) failure by the national authorities 
to implement decisions taken by 
the authority empowered by 
them. 32 
(2) Lack of communication by the national 
authorities with the Commission. The 
failure to notify the Commission of the 
absence of measures adopted by the 
Greek authorities with a view to put­
ting in place the special control system 
for approved mills imposed by the 
Community regulations and the rea­
sons for this situation are noted. 
(3) Lack of rigour in the physical checks 
carried out by the Greek authorities 
and inadequacy of the checks. The 
Greek competent authorities are there­
fore criticised: 
(a) for having omitted to apply a 
classification of small and large 
producers; 
(b) for having neglected to check pro­
ducers who had declared unusual 
yields; 
(c) for the lack of representativeness of 
the producers checked; 
(d) for no use at all being made of the 
information from the checking of 
producers and mills; 
(e) for lack of effective control instru­
ments: in addition to the absence 
of an olive cultivation register and 
land register, there is, in particular, 
a total absence of alphanumeric 
references allowing the plots 
declared to be correctly located 
and preventing multiple declara­
tions for the same plot, and there 
are differences between the types 
of software used thus preventing 
the supply of a single file. 
56. Further to these verifications carried 
out over several years, on 12 February 
1995 the EAGGF sent the Greek authorities 
a list of measures to be taken in order to 
check production. This list summarised the 
observations, recommendations and 
requirements for improvement already 
notified to the Greek authorities under the 
usual dialogue procedures for 1992. 
57. On 13 July 1995, the Greek authorities 
informed the EAGGF that new procedures 
taking this list into account had been put in 
place for the 1995/96 marketing year. 
32 — The withdrawals of approval proposed by the Olive Oil 
Agency, the body falling under the authority of the Greek 
Ministry of Agriculture and composed of public officials 
(hereinafter the 'Agency'), were not actually implemented. 
I - 5734 
GREECE V COMMISSION 
58. For 1992, the EAGGF indicated that it 
was maintaining the proposed financial 
correction of 10% and stated that this 
would revised downwards only if it were 
proven that the new system put in place 
was able to respond significantly to the 
requirements of protecting Community 
funds from risks of irregularity and fraud. 
59. Summary Report No 2 indicates that 
the analysis of the various documents and 
information supplied to the EAGGF, and 
the missions carried out by the latter from 
20 to 24 May 1996 in respect of the 1993 
and subsequent financial years, only served 
to confirm the defects in the management 
and alternative control system. 
60. Firstly, the same defects as those set out 
in detail in Summary Report No 1 were 
reported. Summary Report No 2 noted in 
particular the absence of an olive cultiva-
tion register and land register, the total 
absence of alphanumeric references, differ­
ences between the types of software used 
and no use at all being made of the 
information from the checking of produ­
cers and mills. 
61. Secondly, new defects were noted. 
62. Thus, al though the 1992/93 and 
1993/94 marketing years were years of 
reduced olive harvests, no instruction 
enabling the detection of producers with 
unusual yields was given by the competent 
Greek authorities to the inspectors. Conse­
quently, it is apparent that all the applica­
tions made for production aid were 
accepted and paid. 
63. Likewise, the withdrawals of approval 
from mills at which irregularities had been 
detected, requested by the Agency, were not 
i m p l e m e n t e d . Wi th r eg a rd to the 
1994/1995 marketing year, from a total of 
134 proposed withdrawals, only two were 
applied by the Ministry of Agriculture. 
Social or political reasons were put forward 
by the Greek authorities to justify the 
failure to implement the Agency's propo­
sals. 
64. Finally, the new approach of physical 
and selective checks on producers, used by 
the Agency from 1995 following the 
EAGGF's observations, enabled the exis­
tence of fraud against the Community to be 
identified and showed the extent of the 
false tree declarations made by the produ­
cers checked. Although the demonstration 
of the irregularity of the expenditure incur­
red had been reported, the EAGGF noted 
that the improvements made to the Agen­
cy's work did not lead to any significant 
change in the Greek control system. Not 
only did the Hellenic Republic not consider 
it useful to put in place the Community 
control instruments recommended by 
I - 5735 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
amended Regulations Nos 154/75 and 
2261/84 (olive cultivation register and 
single computerised file), but it also did 
not take effective alternative measures 
enabling these deficiencies to be overcome. 
The EAGGF therefore concluded that any 
effort by the Agency was being definitively 
blocked by the opposition of the Greek 
competent authorities. 
65. On 3 June 1996, the EAGGF therefore 
warned the Greek authorities that this 
attitude was liable to lead to serious 
financial consequences and pointed out 
that, in exceptional circumstances, the 
refusal of all expenditure incurred by a 
Member State could constitute an appro­
priate measure. 
66. However, for 1993, the EAGGF pro­
posed only that a flat-rate correction of 
10% should be applied to the expenditure 
declared by the Hellenic Republic, unless 
the latter brought an action before the 
conciliation body in this respect. 
3. The actions 
67. The Hellenic Republic disputes the 
corrections of 10% imposed by Decisions 
96/701/EC and 97/333/EC in respect of aid 
for the production of olive oil and contends 
that the Commission made mistakes in 
assessing the reported facts and exceeded 
the limits of its discretionary power. 
68. It claims firstly that the Commission is 
essentially acting on the basis of the 
absence of an olive cultivation register 
and an operational single computerised 
file, the absence of which it does not 
contest. However, it maintains that, since 
the Court had already penalised it on these 
grounds, 33 the Commission could not 
impose further corrections for 1992 and 
1993 based on the same objections. 
69. Secondly, it maintains that it informed 
the Commission in good time of the 
objective reasons preventing it from putting 
in place the Community control instru­
ments provided for by the aforementioned 
regulations and that, in so far as it colla­
borated in good faith with the Community 
authorities, the corrections which were 
applied to it should not have been applied. 
70. Thirdly, it contends that the alternative 
control system does assure the legality of 
the payment of Community funds. It states 
to this end that the Commission announced 
in 1996 that the obligation to establish the 
olive cultivation register had been called 
into question and that, in accordance with 
this new policy, Member States had to carry 
33 — Case C-50/94 Greece v Commission [1996] ECR I-3331. 
I - 5736 
GREECE V COMMISSION 
out aerial surveys and map all the zones 
planted with olive trees. 
71. Fourthly, it claims that it was abso­
lutely impossible for it to meet the Com­
munity requirements in terms of checking 
the regularity of the expenditure incurred in 
respect of the EAGGF. 
4. Assessment 
72. I consider that the pleas in law of the 
Hellenic Republic raised in support of its 
application concerning the corrections 
applied by the EAGGF to the expenditure 
incurred in respect of aid for the production 
of olive oil must be rejected. In my opinion, 
it is apparent from the documents in the 
case that the system put in place by the 
Greek authorities during 1992 and 1993 
involves serious irregularities with regard 
to fundamental elements of the control 
system such that it could properly be 
concluded that there was a high risk of 
widespread loss for the EAGGF. 
73. It should be remembered that, in 
accordance with Regulation No 3453/80 
amending Regulation No 154/75, the Hel­
lenic Republic had to establish the olive 
cultivation register by 31 October 1988. 
74. Likewise, Article 11(2) of Regulation 
No 3061/84, amended by Regulation 
No 98/89, requires Member States to 
ensure that all the components of the 
computerised files are operational before 
31 October 1990. 
75. These texts have not been repealed and 
it does not appear from the proceedings 
that the Community intends to do so, 
contrary to what the Hellenic Republic 
maintains. 
76. It is common ground, and in no way 
disputed by the Hellenic Republic, that 
these obligations have not been complied 
with to date. 
77. As regards the first complaint, to the 
effect that, as the Hellenic Republic was 
found guilty in Case C-50/94 of having 
neglected to establish the Community con­
trol instruments, such as the olive cultiva­
tion register and the single computerised 
file, the Commission could not again put 
forward the same facts against the Hellenic 
Republic, I believe that this is unfounded. 
78. In Case C-50/94, the Court ruled on 
facts relating to irregularities committed 
during 1990. However, Cases C-46/97 and 
I - 5737 
OPINION OH MR LÉGER — CASES C-46/97 AND C-243/97 
C-243/97 concern irregularities noted dur­
ing 1992 and 1993. 
79. Consequently, as the Commission's 
complaints do not aim to challenge the 
force of res judicata of the judgment in 
Case C-50/94, the first plea in law of the 
Hellenic Republic must be rejected. 
80. As regards the second plea in law 
according to which the Hellenic Republic 
allegedly informed the Commission in good 
time of the difficulties which it was 
encountering in establishing the Commu­
nity control instruments provided for by 
amended Regulations Nos 154/75 and 
3061/84 and that, having collaborated in 
good faith with the Commission, the 
penalties should not have been imposed 
thereon, I consider this plea, too, to be 
unfounded. 
81. It is accepted that a Member State may 
raise the absolute impossibility of properly 
implementing a Community decision.34 
However, in this situation, the Member 
State must 'in any event submit the pro­
blems linked with such implementation in 
good time to the appropriate institution for 
consideration.'35 A Member State which 
notifies difficulties after the expiry of the 
period laid down by a Community regula­
tion 'cannot ... prove that it was absolutely 
impossible' 36 to fulfil its obligations. 
82. It must be noted, as the Court has 
already stressed in Case C-50/94, 37 that the 
Hellenic Republic did not notify the diffi­
culties which it was encountering in estab­
lishing the Community control instruments 
until after the expiry of the periods 
imposed by Regulations Nos 154/75 and 
3061/84, amended by Regulations Nos 
3453/80 and 98/89. 
83. In addition, the obligations laid down 
by the aforementioned regulations and 
their purpose were fully explained to the 
Hellenic Republic in Case C-50/94. 38 
84. Since 31 October 1988, the date by 
which the olive cultivation register had to 
be established, and despite the judgment in 
Case C-50/94, no significant change has 
occurred in the system of checking aid for 
the production of olive oil implemented by 
the Hellenic Republic. 
85. By failing to put in place the solutions 
prescribed by the Community regulations, 
the Hellenic Republic has demonstrated 
34 — Case 213/85 Commission v Netherlands [1988] ECR 281, 
at paragraph 22. 
35 — Case C-50/94, at paragraph 39. 
36 — Ibidem, at paragraphs 40 to 42. 
37 — Ibidem, at paragraphs 40 and 41. 
38 — Ibidem, at paragraphs 30 to 39. 
I - 5738 
GREECE V COMMISSION 
that it had no intention of abiding by the 
obligations to which it had, however, freely 
agreed. In these circumstances, it cannot 
reasonably claim to have collaborated in 
good faith with the Community. 
86. It must therefore be concluded that the 
Hellenic Republic has not provided evi­
dence that the delay in establishing the 
olive cultivation register and the compu­
terised file was due to an absolute impos­
sibility. 
87. As regards the third complaint, accord­
ing to which an effective alternative control 
was put in place in Greece, it should be 
noted that the Hellenic Republic does not 
dispute that the system which it established 
does not enable the plots to be identified at 
municipal level. It also does not deny 
having failed to implement the majority of 
the proposed withdrawals of approval from 
mills at which irregularities had been 
detected by the Agency. The absence of a 
system capable of locating the plots 
declared and of identifying their owner 
prevents the aid management and control 
authorities in question from verifying the 
accuracy of the declarations made and, as a 
result, from avoiding the risk of multiple 
declarations for the same plot. It cannot 
therefore be concluded that such a system is 
effective. 
88. It follows that the Hellenic Republic 
has not provided any specific and signifi­
cant evidence capable of establishing the 
existence of a reliable and operational 
control system. 
89. Finally, with regard to the reasons for 
the deficiencies or inadequacies in the 
control system put in place by the Hellenic 
Republic, the latter refers to reasons of a 
social or political character. In particular it 
claims that strikes in the public sector and 
the opposition of the Minister for National 
Defence to the overflying of the territory by 
foreign aircraft prevented the aerial and 
ground survey which would have enabled 
the plots of olive trees to be identified and, 
as a result, the land register and olive 
cultivation register to be established. 
90. As I have already indicated, the Court 
has already accepted that a Member State 
may invoke an absolute impossibility of 
properly implementing a Community deci­
sion. However, in such a case it is the 
responsibility of the Member State invok­
ing that impossibility to prove the existence 
of this type of circumstance before the 
expiry of the period laid down by the 
Community decision in question. 39 
91. In this case, I have already indicated 
that the Hellenic Republic did not notify 
the difficulties which it was encountering in 
establishing the Community control instru­
ments until after the expiry of the periods 
laid down by Regulations Nos 154/75 and 
39 — Case 215/85, at paragraph 22. and Case C-50/94, at 
paragraph 39. 
I - 5739 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
3061/84, amended by Regulations Nos 
3453/80 and 98/89. 
92. Moreover, it has been held that 'appre­
hension of internal difficulties [of a politi­
cal, economic or social nature] cannot 
justify a failure by a Member State to apply 
Community law correctly' 40 unless that 
State can show 'that action on its part 
would have consequences for public order 
with which it could not cope by using the 
means at its disposal'. 41 On this point, the 
Hellenic Republic has not in any way 
satisfied the requirements of this case-law. 
93. As a result, it is apparent that the 
Hellenic Republic has not provided evi­
dence that it was absolutely impossible for 
it to meet its Community obligations. 
94. It therefore follows that the Hellenic 
Republic has not provided any specific and 
significant evidence capable of rebutting 
the Commission's statements and analysis 
or the consequences which have resulted 
therefrom. 
95. In those circumstances, I ask you to 
hold that the claim of the Hellenic Republic 
regarding the expenditure in respect of aid 
for the production of olive oil must be 
rejected. 
B — The corrections applied in respect of 
aid for permanent abandonment of areas 
under vines 
1. The Community regulations on the 
'wine' sector 
96. Council Regulation (EEC) No 1442/88 
of 24 May 1988 on the granting, for the 
1988/89 to 1995/96 wine years, of perma­
nent abandonment premiums in respect of 
wine-growing areas 42 aims to encourage 
the abandonment of areas under vines by 
granting premiums, in order to bring pro­
duction definitively back to the level of 
demand. 43 The amount of these premiums 
varies according to the productivity of the 
areas concerned, in order to take account 
of the cost of the grubbing-up operations 
and the loss of replanting rights and also 
the loss of future income. 44 
97. According to Article 2(3) of Regulation 
No 1442/88, the yield per hectare of the 
areas referred to in Article 2(1)(b)45 is to 
40 — Case C-265/95 Commission v trance [1997] ECR I-6959, 
at paragraph 55. 
41 — Ibidem, at paragraph 56. 
42 — OJ 1988 L 132, p. 3. 
43 — First recital. 
44 — Third recital. 
45 — This involves areas of more than 25 ares cultivated with 
wine-grape varieties. 
I - 5740 
GREECE V COMMISSION 
be calculated on the basis of the average 
yield declared for the recipient's holding 
and on an on-the-spot assessment, carried 
out by the competent body of the Member 
State concerned prior to grubbing up, of the 
productive capacity of the wine-growing 
area to be grubbed up. 
98. Under Article 4(2) of Regulation 
No 1442/88, the grant of the premium is 
to be subject to a written declaration in 
which the applicant undertakes to grub up 
the vines on the areas in respect of which 
the premium has been applied for, or to 
have them grubbed up, before 15 May of 
the year following that in which the 
application is submitted. 
9 9 . C o m m i s s i o n R e g u l a t i o n (EEC) 
No 2729/88 of 31 August 1988 46 lays 
down detailed rules for the application of 
Regulation No 1442/88. In the interests of 
ensuring that the system runs efficiently 
and can be supervised, the nature of the 
information to be entered on the applica­
tion for a premium must be laid down and 
provision must be made for the checking of 
that information. 47 Before the premium is 
paid or, should an advance have been 
made, the security released, the production 
capacity of the areas to be grubbed up 
should be assessed and it should be verified 
that grubbing up of said areas has actually 
taken place. 48 
100. Under Article 4(1)(a) of Regulation 
No 2729/88, applications for premiums are 
to include the following information as 
regards the holding: the applicant's name 
and address; the area under vines, whether 
these be a specialised crop or grown in a 
mixed system; the area under vines, in 
hectares, ares and centiares, to be grubbed 
up; the age and method of training of the 
vines to be grubbed up; the varieties 
concerned; the date of the scheduled grub­
bing up, and the request for an advance, if 
applicable. In this case, proof that the 
security has been furnished is to accompany 
the request. 
101. According to Article 4(2) of Regula­
tion No 2729/88, the competent body of 
the Member State is to verify the informa­
tion mentioned in paragraph 1, register the 
declaration provided for in Article 4(2) of 
Regulation No 1442/88, determine the 
production capacity of the wine-growing 
areas to be grubbed up on the basis of their 
age, state of upkeep and the proportion of 
missing vines, among other considerations, 
calculate the yield per hectare of the areas 
concerned, in accordance with Article 2(3) 
of Regulation No 1442/88, and notify the 
applicant of the level of premium granted, 
after allowing him to submit his own 
observations. 
102. Under Article 6(1) of Regulation 
No 2729/88, the competent body is, at 
the applicant's request and within two 
months of the complete grubbing up of 
the vines located on the plots identified, to 
46 — OJ 1988 L 241, p. 108. 
47 — fourth recital. 
48 — Sixth recital. 
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OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
verify that the operation has taken place 
and certify when it took place. 
1 0 3 . Counc i l R e g u l a t i o n (EEC) 
No 2048/89 of 19 June 1989 lays down 
general rules on controls in the wine 
sector. 49 
104. Article 3(1) of that regulation pro­
vides that Member States are to take the 
necessary measures to improve control of 
compliance with the rules in the wine 
sector, notably in the particular fields listed 
in the Annex, including the grubbing up of 
vines. 
105. Article 3(2) thereof provides that 'The 
controls in [these] areas ... shall be carried 
out either systematically or by sampling. In 
the case of sampling, Member States shall 
ensure by their number, nature and fre­
quency that controls are representative of 
the whole of their territory and correspond 
to the scale of the wine-sector products 
marketed or held with a view to their 
marketing'. 
106 . Counc i l R e g u l a t i o n (EEC) 
No 2392/86 of 24 July 1986 establishing 
a Community vineyard register 50 aims to 
enable the Community to obtain the vital 
information on production potential and 
trends in order to ensure the proper func­
tioning of the common organisation of the 
market in wine and, in particular, of the 
Community arrangements on intervention 
and planting, and monitoring measures. 51 
According to the eleventh recital, by virtue 
of the information which it contains, the 
register constitutes a vital instrument for 
management and monitoring. The compe­
tent authorities assigned to management 
and those responsible for monitoring must 
accordingly have access thereto. 
107 . Ar t ic le 4(1) of R e g u l a t i o n 
No 2392/86 initially set the deadline for 
establishing the vineyard register in its 
entirety at 27 July 1992. However, consid­
ering that some Member States encoun­
tered technical difficulties in complying 
with that deadline, the Council extended 
this to 31 December 1996 by Regulation 
(EC) No 1549/95 of 29 June 1995. 52 
108. Likewise, Article 4(4) of Regulation 
No 2392/86, as added by Regulation 
No 1549/95 and amended by Council Reg­
ulation (EC) No 1596/96 of 3.0 July 
1996, 53 states that Member States which, 
on 1 July 1995, have not yet established a 
vineyard register or which have only estab-
49 — OJ 1989 L 202, p. 32. 
50 —OJ 1986 L 208, p. 1. 
51 — Second recital. 
52 — OJ 1995 L 148, p. 37. 
53 —OJ 1997 L 206, p. 38. 
I - 5742 
GREECE V COMMISSION 
lished a part ial register are, before 
31 December 1998, to establish reference 
charts covering the entire area under vines. 
2. Facts 
109. Summary Reports No 1, amended by 
the supplement of 14 June 1996, and No 2 
state that the Hellenic Republic has failed 
to apply the recommendations, communi­
cated by official letters and referred to in 
the summary reports for 1990 and 1991, 
indicating that the persons assigned to 
check the premium application documents 
must not be the same as those assigned to 
carry out on-site physical checks that the 
information appearing in these applications 
is truthful. 
110. It is stated in these two summary 
reports that this situation is the result of the 
absence of a vineyard register and land 
register in this Member State, thereby 
necessitating recourse to specific persons 
with good knowledge of the regions being 
inspected and who are the only ones able to 
verify the accuracy of the information 
appearing in the applications submitted by 
the producers declaring that they have 
grubbed up the vines and applying for the 
related premiums. 
3. The actions 
111. According to the Hellenic Republic, 
the flat-rate corrections of 2 % imposed by 
the Commission in respect of aid for 
permanent abandonment of areas under 
vines are based on a misassessment of the 
facts. 
112. It does not dispute the absence of 
either a vineyard register or a land register 
but claims that the many checks carried out 
both on documents and on the spot by 
specific persons with good knowledge of 
the local situation constitute efficient ways 
of validly combatting the risks of fraud 
against Community interests. It also does 
not dispute the difficulties in identifying 
plots but declares that it has full confidence 
that the responsible officers of the munici­
palities can overcome this problem. It 
claims that the EAGGF does not put 
forward any specific fact confirming the 
existence of fraud or incorrect declarations. 
113. The Commission, for its part, main­
tains its complaints. It also refers to inspec­
tions carried out by the EAGGF services in 
1995 which identified irregularities leading 
to serious doubts about the efficiency of the 
national checks. The national inspectors 
were therefore not in a position to justify 
the areas admitted in the context of the 
administrative procedures for the control 
and approval of aid applications. This 
situation therefore revealed the total 
absence of any assurance that the informa-
I - 5743 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
tion provided by the aid applicants was 
truthful with regard to the location of 
plots, their precise area and the identity of 
the owner. 
114. The Commission notes the risks of 
fraud inherent in an empirical system 
which is based entirely and solely on the 
reliability of certain officials. It stresses the 
urgency of putting in place a reliable and 
objective system enabling the EAGGF ser­
vices to carry out all the verifications 
needed for the proper management and 
administration of Community funds and to 
check that the premiums intended to com­
pensate wine-growers who permanently 
abandon wine-growing areas have been 
duly granted by the competent Greek 
authorities. 
4. Assessment 
115. I consider that the objections of the 
Hellenic Republic regarding the corrections 
applied by the EAGGF in respect of aid for 
permanent abandonment of areas under 
vines for 1992 and 1993 must be rejected. 
116. It should be noted that Regulation 
No 1442/88 aims to encourage the aban­
donment of wine-growing areas in order to 
bring wine production in the Community 
definitively back to the level of demand by 
granting premiums for grubbing up vines to 
wine-growers agreeing to this. Its main aim 
is therefore the regulation of the common 
market in wine. 
117. Regulation No 2729/88 which lays 
down detailed rules for the application of 
the system put in place by Regulation 
No 1442/88 requires Member States to 
devise a system enabling the truthfulness 
of the declarations on the location, area 
and characteristics of the vines grubbed up, 
and their owner, to be checked. Member 
States are therefore required to establish 
accurate, reliable and unquestionable con­
trol instruments which may be used both by 
the national authorities assigned to mon­
itoring and management operations and by 
the outside services assigned to ensure the 
regularity of the expenditure incurred by 
the Guarantee Section of the EAGGF. 
118. The Community control instruments 
recommended by Regulation No 2392/86, 
as amended, are the establishment of a 
vineyard register and a land register. These 
are compulsory from 31 December 
1996. 54 
119. These Community instruments have a 
dual objective. First, they are intended to 
ensure effective control of the regularity of 
aid for permanent abandonment of areas 
under vines granted by Member States. 
Second, they enable the common agricul-
54 — Article 4(1) of Regulation No 2392/86, amended by 
Regulation No 1549/95. 
I - 5744 
GREECE V COMMISSION 
turai policy for the market in wine to be 
administered effectively. 55 They are also 
intended to be tools for managing the 
market in 'wine' and are therefore meant 
to help the Community legislature develop 
the common agricultural policy and pro­
vide for and anticipate the measures to be 
taken to meet the needs of wine-growers, 
professionals operating in this market and 
consumers. The introduction of a control 
system, based on objective and unquestion­
able elements and usable not only by the 
national authorities but also by the Com­
munity authorities, is therefore essential to 
the proper functioning of the common 
agricultural policy for the market in wine. 
120. It is undeniable, and in no way 
disputed by the Hellenic Republic, that 
the system put in place in Greece relies 
exclusively on the competence, reliability 
and rigour of certain officials who alone 
are able to verify the accuracy of premium 
applications. Such a system does not meet 
the requirements of the Community regu­
lations. The information supplied by the 
Hellenic Republic cannot be effectively 
verified by either national or Community 
outside services. Consequently, the system 
put in place does not enable the objectives 
of Regulations Nos 1442/88 and 2392/86 
to be achieved. It must accordingly be 
concluded that, by maintaining such a 
system, the Hellenic Republic is infringing 
the aforementioned Community regula­
tions. 
121. Moreover, it should be noted that 
Article 4(4) of Regulation No 2392/86, as 
inserted by Regulation No 1549/95 and 
amended by Regulation No 1596/96, 
requires Member States which, on 1 July 
1995, have not yet established a vineyard 
register to establish, before 31 December 
1998, reference charts covering the entire 
area under vines. 
122. Given that the Hellenic Republic has 
acknowledged in the course of these pro­
ceedings that the control and management 
system put in place in Greece does not 
enable the plots, areas and owners of the 
vines to be identified, and in view of its 
claim that this problem can be overcome by 
on-the-spot checks carried out by commu­
nal officials, I doubt that the Hellenic 
Republic is in any position to comply with 
the aforementioned obligations by the spe­
cified deadlines. 
123. Under Article 8(1) of Regulation 
No 729/70, 56 the proper functioning of 
the common agricultural policy also 
requires that Member States take all the 
measures necessary to satisfy themselves 
that transactions financed by the EAGGF 
are actually carried out and are executed 
correctly and also to prevent irregularities. 
55 — Second recital of Regulation No 2392/86. 56 — Point 9 of this Opinion. 
I - 5745 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
124. I therefore conclude that it is essential 
in order both to respect the financial 
interests of the Community and to define 
a coherent common agricultural policy for 
the market in wine that the Hellenic 
Republic should accept the EAGGF recom­
mendations by ensuring that the persons 
assigned to management and those assigned 
to monitoring aid applications for perma­
nent abandonment of areas under vines are 
not the same and by establishing accurate 
records of plot areas, their location and 
characteristics and the owners of those 
plots. 
125. It therefore follows that the Hellenic 
Republic has not provided any significant 
evidence capable of rebutting the Commis­
sion's analysis or the consequences which 
have resulted therefrom. Under these cir­
cumstances, I ask you to find that the pleas 
in law regarding the expenditure in respect 
of aid for permanent abandonment of areas 
under vines for 1992 and 1993 must be 
rejected. 
C — The corrections applied in respect of 
tobacco (production in excess of maximum 
guaranteed quantity) 
1. The Community regulations on the 
'tobacco' sector 
126. Regulation (EEC) No 727/70 of the 
Council of 21 April 1970 57 established a 
common organisation of the market in raw 
tobacco. 
127. The aim of the common organisation 
of the market in raw tobacco is 'to 
introduce common provisions of such a 
kind as will provide Community producers 
with guarantees equivalent, as regards 
employment and living standards, to those 
afforded under national marketing arrange­
ments.' 58 
128. To attain these objectives, 'an inter­
vention policy based on a system of norm 
and intervention prices, which includes the 
obligation to buy in at the intervention 
price and the granting of premiums to users 
who purchase leaf tobacco direct from 
Community producers', 59 is established. 
129. That regulation provides for a system 
of maximum guaranteed quantities under 
which, if the quantities fixed for a variety 
or group of varieties are exceeded, the 
prices and premiums relating thereto are to 
be reduced by applying the provisions laid 
down in Article 4(5) of Regulation 
No 727/70, amended by Council Regula-
57 — OJ, English Special Edition 1970 (I), p. 206. 
58 — Fifth recital. 
59 — Sixth recital. 
I - 5746 
GREECE V COMMISSION 
tions (EEC) Nos 1114/88 of 25 April 
1988, 600 1251/89 of 3 Mav 1989, 6 1 
1329/90 of 14 May 1990 ,62 3577/90 of 
4 December 1990 6 3 and 860/92 of 
30 March 1992. 644 
1 3 0 . A r t i c l e 7 a ( 1 ) of R e g u l a t i o n 
No 727/70, inserted by Council Regulation 
(EEC) No 2267/88 of 19 July 1988, 65 
provides that, notwithstanding Articles 2, 
4 and 6, the prices and premiums are to 
apply only to varieties of tobacco from 
communes where that variety has already 
been grown at least once in the five years 
preceding the harvest in question. 
131. However, Article 7a(2) thereof states 
that the Council may determine, at the 
same time as the prices and premiums and 
in accordance with the same procedure, the 
varieties to which paragraph 1 does not 
apply. 
132. Annex III to Council Regulations 
(EEC) Nos 1738/91 of 13 June 1991 66 
and 2062/92 of 30 June 19926 7 fixing, for 
the 1991 and 1992 harvests, the norm and 
intervention prices and the premiums 
granted to purchasers of leaf tobacco, the 
derived intervention prices for baled 
tobacco, the reference qualities and the 
production areas, defines the recognised 
production areas for each Community-
produced tobacco variety. 
133 . Commiss ion Regu la t ion (EEC) 
No 2824/88 of 13 September 1988 68 lays 
down detailed rules for the application of 
the system of maximum guaranteed quan­
tities in the tobacco sector 'in particular as 
regards the determination of the quantity 
actually produced during a given harvest, 
the calculation of any reduction in prices 
and premiums, the granting of the advance 
and the payment of prices and premiums 
before determination of actual produc­
t ion ' .6 9 
134. According to Article 1 of that regula­
tion, on the basis of the data notified by the 
Member States or of other sources of 
information, the Commission is to deter­
mine, for each harvest, before 31 July of 
the year following that of harvest, and for 
each of the varieties or groups of varieties 
of tobacco for which a maximum guaran­
teed quantity has been fixed, the quantity 
actually produced. 
135. Article 3(1) of Regulation No 2824/88, 
as amended by Commission Regulation 
60 — OJ 1988 1. 110, p. 35. 
61 — OJ 1989 1. 129. p. 16. 
62 — OJ 1990 I. 132. p. 25. 
63 — OJ 1990 L 353, p. 23. 
64 — O J 1992 I. 91. p. 1. 
65 — OJ 1988 I. 199, p. 18. 
66 — OJ 1991 I. 163. p. 13. 
67 — OJ 1992 1. 215, p. 22. 
68 — OJ 1988 I. 254, p. 9. 
69 — First recital. 
I - 5747 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
(EEC) No 2907/92 of 6 October 1992,70 
provides that, until actual production has 
been determined as provided for in Arti­
cle 1, not more than 77% of the amounts 
fixed for the intervention prices and pre­
miums for the 1992 harvest may be paid. 
However, at the discretion of the Member 
State, 100% of those prices and premiums 
may be paid if a security equal to 23% is 
lodged for the 1992 harvest. 
136 . Ar t i c le 3(2) of R e g u l a t i o n 
No 2824/88 provides that any balance is 
to be paid and the security shall be released 
or forfeited after actual production is 
determined in accordance with Article 1. 
137. The actual production of each variety 
or each group of varieties of tobacco, the 
prices and premiums to be paid in applica­
tion of the system of maximum guaranteed 
quantities and the overrun of the maximum 
guaranteed quantities shall be fixed by the 
Commission by regulation. 
138. This information, relating to the 
tobacco harvests for 1989 to 1992, is set 
out in Commission Regulations (EEC) Nos 
2046/90 of 18 July 1990,71 2267/91 of 
29 July 1991,72 2178/92 of 30 July 1992 73 
and 2065/93 of 27 July 1993.74 Article 2 
of these Regulations fixes the date of entry 
into force of these limits as the third day 
following their publication in the Official 
Journal of the European Communities. 
139. In accordance with Article 15 of Reg­
ulation No 727/70, Regulation (EEC) 
No 1726/70 of the Commission of 
25 August 1970 fixes the procedure for 
granting the premium for leaf tobacco75 
which, under Article 3 of Regulation 
No 727/70, is granted to natural or legal 
persons who purchase leaf tobacco direct 
from Community producers. 
140 . Ar t ic le 6(1) of R e g u l a t i o n 
No 1726/70 provides that the right to the 
premium is to accrue as soon as the tobacco 
leaves the place in which it was under 
supervision. 
141. Article 7(1) thereof states that the 
premium is to be due as soon as the right 
to the premium accrues. 
70 — OJ 1992 L 291, p. 6. 
71 — OJ 1990 L 187, p. 23. 
72 —OJ 1991 L 208, p. 26. 
73 — OJ 1992 L 217, p. 75. 
74 —OJ 1993 L 187, p. 26. 
75 — OJ, English Special Edition 1970 (II), p. 587. 
I - 5748 
GREECE V COMMISSION 
142. Regulation No 1726/70 lays down a 
system of checking declarations made in 
order to obtain the premium. Thus, with 
regard to checking cultivation contracts in 
order to ensure that the variety of tobacco 
indicated is actually cultivated on the areas 
declared, Article 2c(1) of that regulation, 
inserted by Commission Regulation (EEC) 
No 1197/92 of 8 May 1992, 76 provides 
that the Member States are to conduct 
unannounced on-the-spot checks to verify 
the information given in cultivation con­
tracts and declarations and in particular the 
area and variety cultivated. Such checks are 
to cover at least 5% per variety or group of 
varieties of the cultivation contracts and 
declarations registered in respect of each 
processing enterprise. 
1 4 3 . A r t i c l e 2 c ( 4 ) of R e g u l a t i o n 
No 1726/70, amended by Regulation 
No 1197/92, states that the Member States 
are to take any further measures necessary 
for the application of this regulation. 
144. In addition, Commission Regulation 
(EEC) No 3665/87 of 27 November 1987 
laying down common detailed rules for the 
application of the system of export refunds 
on agricultural products 77 states that, for 
reasons of clarity and administrative effi­
ciency, 'the rules concerned should be 
consolidated and, in some cases, adjusted in 
the light of the experience gained'. 78 
1 4 5 . A r t i c l e 4 7 ( 2 ) of R e g u l a t i o n 
No 3665/87 states that the documents 
relating to payment of the refund or release 
of the security must be submitted, except in 
cases of force majeure, within twelve 
months following the date on which the 
export declaration was accepted. Arti­
cle 48(3)(b) provides that, where a refund 
has been paid in advance in accordance 
with Article 22 and proof that all the 
requirements laid down by Community 
rules have been complied with is furnished 
within six months of expiry of the periods 
set in Article 47(2), (4) and (5), the amount 
to be reimbursed is to be 85% of the 
security. 
2. Facts 
146. The first complaint made by the 
Commission against the Hellenic Republic 
in Summary Reports Nos 1 and 2 is that the 
latter delayed in recovering the overpaid 
premiums after the maximum guaranteed 
quantities of tobacco were exceeded. 
147. According to the Commission, it is 
apparent both from the spirit and the letter 
76 — OJ 1992 L 124 , p . 3 1 . 
7 7 — OJ 1987 L 351, p. 1. 78 — First recital. 
I - 5749 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
of Regulations Nos 2046/90, 2267/91, 
2178/92 and 2065/93 that, in order to 
force economic operators to comply with 
the new maximum guaranteed quantities, 
Member States are to recover the amount 
of those premiums even before the new 
tobacco harvest starts. 
148. Summary Report No 1 points out that 
the Hellenic Republic spread this recovery 
over 41 months, whereas it should have 
seized in September 1992 the securities 
lodged for that purpose. According to the 
Commission, this action rendered the rele­
vant rules ineffective from a financial point 
of view. This situation was also aggravated 
by the depreciation in the national currency 
in question. 
149. Following the conciliation procedure, 
the Commission proposed calculating a 
rate of interest of 10% over an average of 
20.5 months on the total amount recovered 
late, or a correction of GRD 552 174 314. 
150. With regard to 1993, Summary 
Report No 2 points out that, on 31 March 
1996, the Hellenic Republic had recovered 
only part of the overpaid premiums. The 
sum of GRD 51 672 958 still remained to 
be recovered. Noting that these recoveries 
which should have occurred by September 
1993 were spread over 31 months, the 
Commission proposed, by analogy with the 
result of the conciliation procedure for 
1992, calculating a rate of interest of 
10% over an average of 15.5 months on 
the total amount recovered late, or a 
correction of GRD 1 950 445 999, to 
which should be added the unrecovered 
amount. The total amount of the proposed 
c o r r e c t i o n was t h e r e f o r e GRD 
2 002 118 984. 
151. In addition, Summary Report No 1 
sets out three other types of irregularity 
which also had the result of causing the 
maximum guaranteed quantities of tobacco 
to be exceeded. The Hellenic Republic is 
therefore criticised firstly for the failure to 
check the cultivated areas, secondly for the 
cultivation of the Virginia tobacco variety 
in ineligible communes and thirdly for the 
failure to release within the periods set the 
securities lodged. 
3. The actions 
152. The Hellenic Republic disputes all the 
corrections applied in respect of tobacco 
(production in excess of the maximum 
guaranteed quantity). 
I - 5750 
GREECE V COMMISSION 
153. On the first complaint, the Hellenic 
Republic acknowledges the facts but con­
tends that the Commission was unfounded 
in demanding the immediate recovery of 
the premiums unduly granted. It maintains 
that it follows from Articles 6 and 7 of 
Regulation No 1726/70 that the amounts 
by which the premium is reduced because 
the maximum guaranteed quantities have 
been exceeded must be reimbursed when 
the tobacco is released from supervision, 
that is when the end recipient, the tobacco 
processor, accrues the right to the premium. 
154. According to the Hellenic Republic, 
the legal system described by the Commis­
sion assumes that a specific and fixed date 
for the recovery of the amounts unduly 
received was set by regulation so that all 
Member States could use the same method 
and so that competition could develop 
under equal conditions for all. 
155. Moreover, contrary to the Commis­
sion's arguments, its interpretation would 
not have any dissuasive effect on potential 
defrauders as the regulations fixing the 
maximum guaranteed quantities are always 
adopted at the end of July, that is to say, at 
a time when it is too late for processors and 
producers to be required to comply with 
the maximum guaranteed quantities thus 
defined. 
156. In the alternative, if the Court were to 
agree with the Commission's analysis, the 
Hellenic Republic requests that it be 
allowed to benefit from the deduction of 
the sums granted to the companies required 
to reimburse premiums unduly received 
which have initiated legal proceedings and 
been granted interim relief in the form of a 
protection order. 
157. The Commission maintains this com­
plaint based on Article 2 of Regulations 
Nos 2046/90, 2267 /91 , 2178/92 and 
2065/93. 
158. In its opinion, any late recovery, in 
this case aggravated by the depreciation of 
the Greek drachma in relation to the ecu, 
threatens the objective of the aforemen­
tioned regulations which consists in sub­
sidising only tobacco production not 
exceeding the maximum guaranteed quan­
tities. In addition, any delay in recovering 
unduly paid premiums could only create 
inequalities between Greek processors and 
those of other Member States with the risk 
of disrupting the functioning of the com­
mon organisation of the market. 
159. Finally, on the alternative claim made 
by the Hellenic Republic, the Commission 
considers that the interim stays of execu­
tion granted by the Greek courts are a 
matter of internal relations between the 
Greek authorities and the parties concerned 
and do not affect the obligations of the 
I - 5751 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
Member States arising from the Commu­
nity regulations. 
160. On the second complaint, the Helle­
nic Republic contends that, immediately 
after the adoption and publication of 
Regulation No 1197/92 in May 1992, the 
Greek Tobacco Board (hereinafter the 
'EOK') adopted the first instructions for 
its application, while Ministerial Decree 
No 27988/92, which provided a legal basis 
for the penalties in cases of irregularities 
detected during checks on cultivated areas, 
was adopted on 3 September 1992. 
161. It does not admit having either 
acknowledged or committed the irregula­
rities complained of by the Commission, 
particularly in the Nafplion Region, and 
claims that it provided all the evidence in 
this respect. It adds that the checks carried 
out by the competent Greek services on 
processing companies involved a propor­
tion of 5% of the cultivation contracts and 
declarations registered per variety or group 
of varieties. On the other hand, it maintains 
that the Commission has not submitted any 
evidence in support of its allegations. It 
claims that the majority of the checks were 
carried out in time and that, although 
delays may have occurred, with checks 
being carried out after the harvest, this did 
not prejudice the Community finances as 
an alternative control system of proven 
reliability had been put in place. 
162. With specific regard to the Nafplion 
Region, the Hellenic Republic contends 
that, although the records bear dates 
between 10 and 26 September 1992, the 
checks were in fact properly carried out 
before those dates. It states that those 
documents were postdated in order to 
comply with the ministerial decree adopted 
on 3 September 1992 and to provide a legal 
basis for any liabilities arising out of the 
checks. It therefore maintains that the 
corrections are unlawful and unjustified. 
163. The Commission maintains its second 
complaint and contends that the late pub­
lication, on 3 September 1992, of the 
ministerial decree on on-the-spot checks 
of cultivated areas, whereas Regulation 
No 1197/92 was in force from 12 May 
1992, created serious doubts as to whether 
the checks had actually been carried out 
when the tobacco was still in the fields, 
given that the harvest started in July and 
ended in August and September. 
164. These doubts were reinforced by the 
fact that, when checks were carried out in 
Greece, particularly in the Nafplion 
Region, fundamental deficiencies were 
noted in the control system. With regard 
to the records drawn up, it was accordingly 
noted that these were all drawn up by the 
same person (same handwriting, same sig­
nature, same pen) and that the dates 
appearing on these records were between 
10 and 26 September 1993. The managers 
of the local EOK acknowledged the theo­
retical nature of these records while main­
taining that the actual checks had taken 
place previously. However, they were 
unable to prove this either during the visit 
I - 5752 
GREECE V COMMISSION 
by the EAGGF officers or subsequently. 
Furthermore, they also admitted that the 
percentage of checks was no more than 
than 3 % . 
165. The Commission points out that, 
although the Greek authorities claimed that 
the checks carried out in other regions were 
properly executed, they could not prove 
this despite repeated requests by the Com­
mission. In those circumstances, the Com­
mission set 28 February 1995 at the latest 
as the deadline for forwarding further 
information in connection with the clear­
ance of accounts for 1992. It was not until 
a year after this deadline had passed that 
the Hellenic Republic submitted various 
documents from which it emerged that the 
checks had been carried out between Octo­
ber and November 1992, that is at a time 
when the tobacco was no longer in the 
fields. These documents also proved that 
the checks involved a percentage of only 
4.88%. 
166. The Commission essentially conclu­
ded, because of the late adoption of the 
measures for checking the tobacco in the 
fields, but also for all the above reasons, 
that the checks laid down by Regulation 
No 1197/92 had not been carried out. 
167. On the third complaint involving the 
corrections applied following irregular 
declarations on the cultivation of the Vir­
ginia tobacco variety in ineligible commu­
nes, the Hellenic Republic puts forward 
several arguments. First, it maintains that 
the allegedly ineligible municipalities are 
situated in regions in which tobacco is 
traditionally cultivated and that, given the 
homogenous nature of these communes, 
they must regarded as eligible by the 
Commission. 
168. Second, it contends that the premiums 
granted for the cultivation of the Virginia 
tobacco variety, judged to be irregular on 
the basis of Regulation No 727/90, were 
granted in application of a structural pro­
gramme and that it was normal for farmers 
making major investments to put in place 
the infrastructure essential to the cultiva­
tion of this variety, in particular drying 
rooms, to be compensated. Thus, to impose 
on them a correction for an activity 
encouraged by the Community would not 
only be unfair but also odd. 
169. Finally, it states that the Virginia and 
Basmas varieties were exempt from the 
application of Article 7a of Regulation 
No 727/70. 
170. The Commission maintains its third 
complaint. It claims that the Member States 
cannot decide arbitrarily on whether or not 
to apply the conditions fixed by the Com-' 
I - 5753 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
munity regulations on premiums and that it 
is solely for the Council to decide on the 
eligible municipalities and the tobacco 
varieties to benefit from the intervention 
prices and premiums relating thereto. 
171. It also states that, as the regulations 
on the common organisation of the market 
in tobacco and the measures adopted under 
the structural programmes have different 
aims, the Hellenic Republic cannot invoke 
the application of rules in respect of 
structural programmes in order to escape 
the provisions on the common organisation 
of the market in tobacco. 
172. On the fourth complaint, alleging 
failure to release securities within the 
periods set by the Community regulations, 
the Hellenic Republic maintains that the 
Commission committed a manifest error in 
assessing the facts. 
173. The Hellenic Republic claims that it 
can show, with the support of factual 
evidence, that the securities were actually 
released in time. 
174. The Commission points out that, with 
regard to the clearance of accounts for 
1992, the deadline for forwarding further 
information was set at 28 February 1995. 
It states that this evidence had not been 
provided by the Hellenic Republic by 
12 January 1996, the date of the meeting 
with the conciliation body. As this evidence 
was communicated for the first time during 
the present action, it considers that it has 
not had a chance to verify, within the 
prescribed periods, whether those facts are 
true. It therefore concludes that this claim 
must be rejected. 
4. Assessment 
175. I consider that the pleas in law put 
forward by the Hellenic Republic regarding 
the corrections applied by the EAGGF in 
respect of tobacco (production in excess of 
maximum guaranteed quantity) must be 
rejected. 
176.. On the first plea, relating to the late 
recovery of overpaid premiums, I maintain 
that the interpretation proposed by the 
Hellenic Republic, to the effect that the 
recovery of the premiums unduly paid 
because the maximum guaranteed quanti­
ties have been exceeded must take place 
when the end processor has acquired his 
right to the premium, that is when the 
tobacco is released from supervision, can­
not be accepted essentially for four reasons. 
I - 5754 
GREECE V COMMISSION 
177. First, it is settled case-law 79 that only 
intervention undertaken in accordance with 
the Community rules is to be financed by 
the EAGGF and that, where the Commis­
sion has doubts concerning a transaction 
which it considers to be justified by the 
surrounding facts or circumstances, it must 
withhold the sums corresponding to that 
transaction unless the Member State pro­
duces sufficient evidence to dispel those 
doubts. 80 
178. The correction applied by the Com­
mission is explained by the fact that the 
Hellenic Republic did not check, under the 
conditions laid down by the Community 
regulations, the accuracy of the declara­
tions made by the tobacco producers. The 
Hellenic Republic does not dispute the 
facts. It should therefore have refused to 
finance those measures as soon as it 
realised that they were of a doubtful nature 
and should not have claimed that it was 
entitled to wait for the end processor's right 
to the premium to accrue before recovering 
the premiums unduly paid, as that proces­
sor could no longer invoke a right to the 
premium laid down by the Community 
regulations in this respect. It should be 
noted that the end processor is entitled to 
the premium only as a result of the tobacco 
producer being entitled to this. That fol­
lows from Article 7a(1) of Regulation 
N o 7 2 7 / 7 0 , inser ted by Regula t ion 
No 2267/88, which expressly provides that 
the prices and premiums are to apply only 
to varieties of tobacco from communes 
where that variety has already been grown. 
It must accordingly be concluded that the 
right of subsequent economic operators is 
conditional on the right of prior operators. 
179. Second, both the aim and general 
scheme of Regulat ions Nos 727/70, 
2046/90, 2267/91, 2178/92 and 2065/93 
confirm this interpretation. 
180. The recitals in the preambles to Reg­
ulations Nos 2046/90, 2267/91, 2178/92 
and 2065/93 expressly state that, where 
production in excess of the maximum 
guaranteed quantity is detected, the recov­
ery of the overpaid premiums must occur 
immediately. The first recital in those 
regulations therefore states that, where the 
quantities fixed for a variety or a group of 
varieties are exceeded, the system put in 
place by Regulation No 727/70 requires 
that 'the prices and premiums concerned 
must be reduced'. The second recital in 
those same regulations states that 'Regula­
tion No 2824/88 lays down that, before 
31 July of the year following that of 
harvest, the Commission must, for each of 
the varieties or groups of varieties of 
tobacco for which a maximum guaranteed 
quantity has been fixed, determine in 
particular on the basis of the figures 
notified by the Member States, the quantity 
actually produced which, if exceeded, 
causes the prices and premiums for the 
variety or group of varieties concerned to 
be reduced by 1% for each 1% by which 
the maximum guaranteed quantity is excee-
79 — Case C-48/91, at paragraph 14, and Case C-253/97, at 
paragraph 6 (referred to in footnote 7 of this opinion). 
80 — Case C-240/97, at paragraph 39. 
I - 5755 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
deď. Under Article 2 of those regulations, 
their date of entry into force is set as the 
third day following their publication in the 
Official journal of the European Commu­
nities. 
181. It must accordingly be concluded that, 
on the entry into force of Regulations Nos 
2046/90, 2267/91, 2178/92 and 2065/93, 
the Member States were required to 
demand the immediate reimbursement of 
premiums paid over and above the max­
imum guaranteed quantities, that is before 
the start of the following harvest. 
182. The general scheme of Regulations 
Nos 727/70 and 2824/88 also confirms this 
analysis. 
183. In this respect it should be noted that 
Regulation No 727/70 establishes two 
types of measure: first, the obligation to 
buy in tobacco produced by Community 
producers in accordance with the quantities 
and intervention prices fixed annually; and, 
second, the granting of premiums to pro­
cessors who purchase leaf tobacco direct 
from these producers. At the same time, 
Regulation No 2824/88, which lays down 
detailed rules for the application of the 
system of maximum guaranteed quantities 
in the tobacco sector, distinguishes between 
two types of check: those carried out on -
tobacco producers who receive the inter­
vention prices; and those carried out on 
tobacco processors who receive the pre­
miums. The checks carried out on tobacco 
producers must necessarily, in order to be 
effective, be carried out before the tobacco 
harvest and, therefore, before the checks 
carried out on the tobacco processors 
which necessarily occur at a later date. 
184. In this case, in so far as the correction 
applied by the Commission was due to the 
lack of monitoring of the accuracy of the 
declarations made by tobacco producers, it 
was for the Hellenic Republic to recover 
the premiums unduly paid without waiting 
for the tobacco to be released from super­
vision, that is at the moment when the end 
processor's right to the premium accrued. I 
have already shown that, in this type of 
situation, that operator cannot claim such a 
right. 
185. It follows that, first, when checks 
carried out on tobacco producers reveal 
that irregularities have been committed, the 
right to the premiums concerned is unfoun­
ded and, second, on the entry into force of 
Regulations Nos 2046/90, 2267/91, 
2178/92 and 2065/93, the Member States 
were required to demand the immediate 
reimbursement of the premiums paid over 
and above the maximum guaranteed quan­
tities, that is before the start of the follow­
ing harvest. It is clear that, when irregula­
rities are detected among tobacco produ­
cers, the rights to the prices and premiums 
concerned lapse. Therefore, Articles 6 and 
7 of Regulation No 1726/70, which lay 
down the conditions for granting the pre-
I - 5756 
GREECE V COMMISSION 
mium, are not applicable. Any other inter­
pretation would result in permitting 
unguaranteed quantities of tobacco to be 
financed. 
186. Third, the Hellenic Republic's argu­
ment that the Commission's analysis was 
not valid owing to the failure to set by 
regulation a specific and fixed date for the 
recovery of the amounts received unduly, so 
that all the Member States could use the 
same method and so that competition could 
develop under equal conditions for all, 
ignores the fact that the interpretation 
proposed by the Hellenic Republic has the 
same disadvantages as the interpretation 
which it disputes. In addition, it does not 
take account of the fact that the main 
objective of the abovementioned Commu­
nity regulations in the tobacco sector is to 
subsidise production of tobacco complying 
with the maximum quantities and not to 
equalise the conditions of competition 
between the various producers. 
187. Fourth, the system put in place in 
Greece cannot be claimed to have any 
dissuasive effect and therefore does not 
have any practical effect in that the eco­
nomic operators involved in doubtful trans­
actions are penalised only after these irre­
gularities have been committed. Thus, the 
Hellenic Republic does not dispute that the 
amounts at issue were in this case recovered 
nearly four years after the irregularities 
were detected. 
188. As for the alternative claim of the 
Hellenic Republic, it should be noted that 
internal relations between the Greek autho­
rities and the parties concerned, particu­
larly following decisions issued by national 
courts, do not affect the obligations of 
Member States arising from the Commu­
nity regulations. 81 This is why the claim 
made by the applicant must also be 
rejected. 
189. On the second plea, relating to the 
absence of checks on the areas and the 
Virginia variety cultivated in ineligible 
communes, it should be noted that, in 
accordance with settled case-law, the Mem­
ber State in respect of which the Commis­
sion has given reasons for its decision 
finding an absence of, or defects in, inspec­
tion procedures carried out in application 
of the operating rules of the Guarantee 
Section of the EAGGF cannot 'rebut the 
Commission's findings by mere assertions 
which are not substantiated by evidence of 
a reliable and operational supervisory sys­
tem. If it is not able to show that they are 
inaccurate, the Commission's findings can 
give rise to serious doubts as to the 
existence of an adequate and effective series 
of supervisory measures and inspection 
procedures'. 82 
81 — See, for example, by analogy, Case C-263/96 Commission 
v Belgium [1997] ECR I-7453, at paragraph 27. 
82 — Case C-253/97, at paragraph 7. 
I - 5757 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
190. It is clear and in no way disputed by 
the Hellenic Republic that the measures 
needed to implement the checks imposed 
by Regulation No 1197/92, which entered 
into force on 12 May 1992, were not 
adopted until September 1992. As a result, 
the unannounced on-the-spot checks on the 
cultivated tobacco and on the declared 
areas established by Article 2c(1) of that 
regulation could not have been effectively 
carried out. The explanations and informa­
tion given by the Hellenic Republic do not 
enable the findings of the EAGGF to be 
rebutted. 
191. It follows that the Hellenic Republic 
has not provided any specific and signifi­
cant evidence capable of establishing the 
existence of a reliable and operational 
control system. 
192. On the third plea, relating to the 
corrections applied following irregular 
declarations of the cultivation of tobacco 
of the Virginia variety in ineligible commu­
nes, I would ask the Court to find that the 
Hellenic Republic has no basis for main­
taining that the Commission should have 
regarded as eligible the communes situated 
in regions in which the cultivation of 
tobacco is traditionally practised. 
193. It should be noted that, although, 
under Article 7a(1) of Regulation 
No 727/70, inserted by Regulation 
No 2267/88, the prices and premiums 
apply only to varieties of tobacco from 
communes where that variety has already 
been grown at least once in the five years 
preceding the harvest in question, Arti­
cle 7a(2) states that the Council may deter­
mine, at the same time as the prices and 
premiums, the varieties to which paragraph 
1 does not apply. 
194. As the Commission has very properly 
pointed out, the Member States are not 
competent unilaterally to change the con­
ditions of application of the Community 
regulations on premiums for tobacco pro­
duction. As Article 7a(1) and (2) of Reg­
ulation No 727/70, inserted by Regulation 
No 2267/88, expressly states that only the 
communes in which a specifically indicated 
variety of tobacco is grown are able to 
benefit from the prices and premiums of 
Regulations Nos 2046/90, 2267/91, 
2178/92 and 2065/93, it is not for the 
Hellenic Republic to extend the effects of 
the aforementioned Community regula­
tions to other communes. 
195. Moreover, it cannot be maintained 
that the concept of 'communes' within the 
meaning of the aforementioned provisions 
I - 5758 
GREECE V COMMISSION 
extends to all communes in a given produc­
tion area. It should be observed that the 
Council makes a distinction between these 
two concepts and that, where it wishes a 
measure to be applied to a production area 
and not to a commune, it expressly indi­
cates this. 83 
196. In addition, as the Commission very 
rightly pointed out, the premiums granted 
to tobacco processors in application of the 
common organisation of the market in raw 
tobacco defined by Regulation No 727/70 
and the premiums granted to tobacco 
producers in the context of financing 
structural programmes with a view to 
testing certain tobacco crops have different 
aims. Regulation No 727/70 does not aim 
to finance investments by tobacco produ­
cers who agree to switch to experimental 
crops but rather, as already pointed out, to 
introduce common provisions of such a 
kind as will provide Community producers 
with guarantees equivalent, as regards 
employment and living standards, to those 
afforded under national marketing arrange­
ments. 
197. Finally, contrary to what the Hellenic 
Republic maintains, it is not apparent from 
the provisions of Article 7a of Regulation 
N o 7 2 7 / 7 0 , inser ted by Regu la t ion 
No 2267/88, that the Virginia and Basmas 
tobacco varieties are exempt from the 
conditions of application of the interven­
tion prices and premiums laid down by 
these regulations. 
198. It follows that the Hellenic Republic 
has not proved any valid justification for 
the failures to comply with the obligations 
arising from Article 7a of Regulation 
No 727/70. 
199. On the fourth and last plea put 
forward by the Hellenic Republic in sup­
port of its application for annulment of the 
correction applied by the Commission with 
regard to the release of securities within the 
periods set by the Community regulations, 
it should be noted that this Member State 
does not dispute the interpretation of the 
rules of law put forward by the Commis­
sion, but confines itself to claiming that the 
Commission committed a manifest error in 
assessing the facts submitted to it. 
200. The Commission, without being con­
tradicted on this point by the Hellenic-
Republic, states that it received belatedly, 
in fact during the present action, the 
evidence which that Member State claims 
to have and that, because it was produced 
83 — See, in particular. Article 1 of Regulation No 1738/91 
which states: 'For the 1991 harvest, the reference qualities 
and recognised production areas for each of the varieties of 
Community-produced leaf tabacco referred to in Arti­
cle 2(3)(b) and ( c ) ot Regulation (EEC) No 727/70, shall 
be as set out respectively in Annexes I and III to this 
regulation.' 
I - 5759 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
so late, it has not been able to decide on its 
relevance. 
201. It should be recalled that, in accor­
dance with settled case-law, the Member 
State against which the Commission has 
given reasons for its decision finding an 
absence of, or defects in, inspection proce­
dures carried out in application of the 
operating rules of the Guarantee Section 
of the EAGGF cannot 'rebut the Commis­
sion's findings by mere assertions which are 
not substantiated by evidence of a reliable 
and operational supervisory system. If it is 
not able to show that they are inaccurate, 
the Commission's findings can give rise to 
serious doubts as to the existence of an 
adequate and effective series of supervisory 
measures and inspection procedures'. 84 
202. As the Member State did not consider 
it useful to submit this evidence in sufficient 
time to enable the Commission to carry out 
all the checks that might prove to be 
necessary, in particular any checks on the 
spot or hearings, and as I am also unable to 
carry out these checks, it must therefore be 
considered that the Hellenic Republic has 
not provided any significant evidence cap­
able of rebutting the Commission's analysis 
or the inferences which it has drawn from it 
and that the plea regarding the corrections 
applied by the Commission in respect of the 
securities lodged and not released within 
the periods set must be rejected. 
III — The claim specific to Case C-46/97 
A — The correction applied in respect of 
production aid for cotton 
1. The Community regulations on the 'cot­
ton' sector 
203. The Council adopted Regulation 
(EEC) No 2169/81 of 27 July 1981 laying 
down the general rules for the system of aid 
for cotton. 85 
204. Article 10 of that regulation provides 
that the producer Member States are to set 
up a system of controls to, in particular: 
84 — Case C-253/97, at paragraph 6. 85— OJ 1981 L 211, p. 2. 
I - 5760 
GREECE V COMMISSION 
— ascertain the quantity of unginned 
Community cotton which has entered 
each cotton ginning undertaking; 
— ascertain the quantity or unginned 
Community cotton which has been 
ginned; 
— ensure that the minimum price is 
complied with. 
205. According to Article 12 of the regula­
t ion , the prov is ions of Regu la t ion 
No 729/70, on the financing of the com­
mon agricultural policy, 86 are to apply by 
analogy to the matters dealt with in Reg­
ulation No 2169/81. 
206. Under Article 8(1) of Commission 
Regulation (EEC) No 1201/89 of 3 May 
1989 laying down rules implementing the 
system of aid for cotton,8" all cotton 
growers are, before a date set by the 
Member State concerned and, except in 
cases of force majeure, not later than 
1 July, to send an annual declaration of 
the areas sown. 
207. Under Article 8(2) of Regulation 
No 1201/89, if the areas declared differ 
from those found during the inspections 
referred to in Article 12(1)(a), the Member 
States are to adjust the declarations con­
cerned. They shall take such adjustments 
into account in determining the total area 
declared. 
208. According to Article 12(1) of Regula­
tion No 1201/89, the agency appointed by 
the producer Member State for this purpose 
is to verify in particular: 
(a) the accuracy of the declarations of 
areas sown, on the basis of random 
inspections relating to not less than 5% 
of the declarations; 
(b) that the contracts lodged fulfil the 
conditions laid down in Article 10, in 
particular compliance with the mini­
mum price; 
86 — See points 6 to 9 of this Opinion. 
87 — OJ 1 9 8 9 L 123, p. 23. 
I - 5761 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
(c) that the quantity of cotton for which 
aid is being applied for corresponds to 
the quantity of unginned cotton of 
Community origin produced on the 
area indicated in the contract(s); 
(d) that the quantity of cotton for which 
aid is paid corresponds to the quantity 
of Community cotton actually ginned. 
209 . Article 12(2) of Regula t ion 
No 1201/89 states that the competent 
agency is to allow as qualifying for aid 
only the quantity of cotton in respect of 
which all the conditions are fulfilled. 
210. According to Article 13 of Regulation 
No 1201/89, the stock records provided for 
in Article 6(2) of Regulation No 2169/81 
are to contain information on (separately in 
respect of unginned cotton harvested inside 
the Community and unginned cotton har­
vested outside the Community) the quan­
tities of unginned cotton, ginned cotton, 
seed, oil and cotton linters in stock on the 
first day of each month. 
2. Facts 
211. Summary Report No 1 points to ser­
ious deficiencies in fundamental elements 
of the system of management and control 
of production aid for cotton. These defi­
ciencies consequently justify the flat-rate 
corrections of 10% of expenditure applied 
during the clearance of accounts for 1992 
of the Guarantee Section of the EAGGF 
and in respect of certain expenditure for 
1993. 
212. The Commission states that, having 
noted for the 1991/92 marketing year a 
significant and unexplained gap between 
the Greek authorities' production estimate 
and the volume for which aid was claimed, 
and in view also of the previous history of 
this product, 88 it found it necessary to call 
on the Hellenic Republic, on 10 July 1992, 
to carry out an investigation on the basis of 
Article 6 of Regulation No 595/91 con­
cerning irregularities and the recovery of 
sums wrongly paid in connection with the 
financing of the common agricultural pol­
icy and the organisation of an information 
system in this field. 89 
213. The first stage of the investigation, 
conducted jointly by the Commission, the 
88 — Summary reports for 1989 and 1990. 
89 — See points 15 to 19 of this Opinion. 
I - 5762 
GREECE V COMMISSION 
competent Greek authorities and an exter­
nal firm of auditors, from 26 October 1992 
to 4 December 1992, found irregularities 
and serious deficiencies in the Greek Cot­
ton Board's control arrangements. In parti­
cular it identified the lack of real instru­
ments for checking areas declared by pro­
ducers. 
214. Despite repeated demands from the 
EAGGF, the second stage of the investiga­
tion, scheduled for January to June 1993 
and intended to involve checks to be 
carried out at ginning undertakings, was 
never undertaken by the Greek authorities, 
as the Minister for Agriculture acknowl­
edged in a letter of 14 June 1994. 
215. Although the competent Greek autho­
rities, on the one hand, initiated legal 
proceedings and imposed administrative 
penalties in relation to the 1991/92 market­
ing year and, on the other hand, adopted 
new measures to improve the quality of the 
national control system and issued new 
national instructions to be followed in the 
1992/93 and 1993/94 marketing years, the 
EAGGF drew the attention of those autho­
rities to the inadequate nature of those 
measures. They specifically asked the Hel­
lenic Republic to complete the investigation 
in progress and, in accordance with Arti­
cle 6 of Regulation No 595/91, to commu­
nicate to the EAGGF the final conclusions 
of the investigation and a precise evalua­
tion of the financial implications of the 
irregularities uncovered. 
216. As those requests were never satisfied, 
the Commission concluded that, with 
regard to 1991, the Hellenic Republic had 
failed to fulfil its obligations under Arti­
cle 8 of Regulation No 729/70 which pro­
vides that Member States are to take the 
measures necessary to prevent and deal 
with irregularities and to recover sums lost 
as a result of irregularities detected. 9 0 A 
financial correction of 2 5 % of expenditure 
was therefore proposed for the EAGGF 
financial year of 1991. 
217. Subsequent checks carried out by the 
EAGGF revealed that the competent Greek 
authorities had still not communicated 
information on the progress of the investi­
gation requested in 1992 under the provi­
sions of Regulation No 595/91, that they 
were still using in 1992 the same manage­
ment and control system for sums paid in 
respect of production aid for cotton as in 
1991 and that they had not applied the new 
instructions adopted until after the 1993/94 
marketing year. As a result of those persis­
tent deficiencies and irregularities, while 
90 — Ibidem, point·. 9 .ind 10. 
I - 5763 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
acknowledging the progress made in the 
quality of cooperation, owing to the efforts 
of the joint working party, the EAGGF 
proposed a correction of 25% of the 
expenditure declared by Greece for the 
1992 financial year in respect of cotton. 
218. In addition, Summary Report No 1 
stated that, with regard to the additional 
aid for small producers, the results of 
various investigations carried out in the 
sector showed the inefficiency of the man­
agement and controls relating thereto and 
proposed applying the same rate of correc­
tion to this expenditure declared by the 
Hellenic Republic. However, it was pointed 
out that this rate could be reduced if 
improvements were observed. 
219. The supplement to Summary Report 
No 1, of 23 September 1996, pointed out 
that the EAGGF investigations carried out 
in 1995 and 1996 had confirmed the 
improvement of the situation. Thus it was 
noted that adequate measures had been 
adopted by the Greek authorities to restore 
cooperation with the Commission and to 
ensure, as from the 1995/96 marketing 
year, that checks on cotton production aid 
and aid to small producers were in con­
formity with the rules. The EAGGF, with 
regard to the 1992 financial year, therefore 
proposed reducing the correction of 25% 
originally notified to the Hellenic Republic 
to a flat rate of 10% and to refund the 
difference. 
3. The action 
220. The Hellenic Republic claims that the 
correction of 10% imposed by Decision 
96/701/EC is based on an incorrect assess­
ment of the facts and implies that the 
Commission has misused its powers or 
exceeded the limits of its discretion. 
221. While acknowledging that irregulari­
ties were committed and detected with 
regard to a number of economic operators, 
the Hellenic Republic maintains that these 
irregularities were neither encouraged by, 
nor the result of, the absence or negligence 
of the competent national departments in 
the management and control arrangements. 
It maintains that these arrangements were 
satisfactory as they enabled the perpetra­
tors of this fraud to be detected and the 
competent national courts to impose fines 
and administrative penalties, so that nearly 
all the sums wrongly paid were recovered. 
222. According to the Hellenic Republic, in 
the absence of negligence or lack of dili­
gence on the part of the competent Greek 
authorities, the flat-rate correction of 10% 
is not justified. 
223. The Commission maintains its com­
plaints and claims that the applicant has 
not provided any evidence showing that the 
findings on the basis of which it acted in the 
I - 5764 
GREECE V COMMISSION 
clearance of the accounts for 1991 and 
1992 were incorrect. It observes in this 
respect that the investigation which was 
carried out in Greece in 1992 and 1993, 
pursuant to Regulation No 595/91, in 
regard to fraud in the cotton sector, was 
supplemented by five control missions by 
the EAGGF which took place between 9 
and 13 January 1995, 13 and 16 June 
1995, 10 and 14 July 1995, 13 and 
17 November 1995 and 22 and 26 January 
1996. 
224. The purpose of those controls was to 
examine the national procedures for the 
management and control of aid in the 
cotton sector in connection with the clear­
ance of accounts for 1992 and subsequent 
years. 
225. In the course of those controls many 
irregularities were detected. The EAGGF 
thus pointed out that in no nome 91 had the 
data collected in order to determine the 
land been either computerised for the 
purpose of setting up the equivalent of a 
land register or used to check the accuracy 
of the declarations of cultivation and to 
determine the areas declared by more than 
one producer. 
226. In addition, it pointed out that the 
plots and land cultivated had not been 
delimited in an objective manner. 
227. It also made it clear that the provi­
s ions of Ar t i c le 13 of R e g u l a t i o n 
No 1201/89 had not been complied with 
as the ginning undertakings were unable to 
compare the quantities of cotton entered 
with the corresponding production of gin­
ned cotton. This was due to the fact that 
the raw product was stored according to 
the quality and type of harvest and not in 
chronological order of entry and that the 
procedure used by the Greek authorities to 
determine the weight of a batch of ginned 
cotton did not meet the conditions fixed in 
Annex B to Regulation No 1201/89. 
228. Finally, it was observed that the 
records which should have been made of 
the unannounced checks were either unu­
sable or unsatisfactory. Reading these very 
brief documents did not enable the signifi­
cance and extent of these checks to be 
determined, which proved the formal nat­
ure of these documents. During the on-the-
spot checks, the absence of any 'plausibil­
ity' control in terms of the undertaking's 
energy consumption, staff and ginning 
capacity was noted. This situation was a 
result of the lack of the computer equip­
ment necessary to monitor the various 
applications for interim payments, the 
applications for calculation of the aid and 
the actual applications for aid in relation to 
the applications for checks. As a result, it 
was impossible to apply correctly and 
verify the application of the percentage of 
aid to the various quantities processed. 
229. The Commission points out that these 
findings correspond to the criteria defined 
91 — Administrative district under Greek law which corre­
sponds to the second degree or decentralisation in Greece. 
I - 5765 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
in Document No VI/216/93 92 to which the 
Greek authorities refer. The failures on the 
part of those authorities involved checks 
which are essential for guaranteeing the 
regularity of EAGGF expenditure and were 
not limited solely to fraud committed by 
certain parties. 
230. The Commission does not dispute 
that the Hellenic Republic took action 
against the persons who committed irregu­
larities. However, it points out that that 
action in individual cases does not remedy 
the previously detected deficiencies and 
defects of the control system. 
231. The Commission also acknowledges 
that the Greek authorities made genuine 
efforts to improve the control system, and 
this, moreover, was the reason for the 
reduction of the correction from 25 to 
10%. However, for 1992, it states that it 
would not be permissible to disregard the 
fact that the expenditure in question was 
incurred in the almost total absence of 
effective controls. 
4. Assessment 
232. In a line of decisions the Court has 
held that the Member State against which 
the Commission has given reasons for its 
decision finding an absence of, or defects 
in, inspection procedures carried out in 
application of the rules of operation of the 
Guarantee Section of the EAGGF cannot 
'rebut the Commission's findings by mere 
assertions which are not substantiated by 
evidence of a reliable and operational 
supervisory system. If it is not able to show 
that they are inaccurate, the Commission's 
findings can give rise to serious doubts as to 
the existence of an adequate and effective 
series of supervisory measures and inspec­
tion procedures'. 93 
233. It is clear, first, that the substantiated 
account of the facts produced by the 
Commission 94 reveals serious deficiencies 
and negligence in regard to fundamental 
elements of the control system and the 
conduct of controls intended to guarantee 
the regularity of expenditure. This logically 
justified the conclusion that there was a 
high risk of widespread loss to the EAGGF. 
Second, it is clear that the irregularities 
acknowledged by the Hellenic Republic in 
respect of 1992 are the direct consequence 
of the absence of an effective, reliable and 
objective control system adopted by that 
92 — See points 20 and 21 of this Opinion. 
93 — Case C-253/97, at paragraph 7. 
94 — See points 223 to 229 of this Opinion. 
I - 5766 
GREECE V COMMISSION 
State. Moreover, the Hellenic Republic 
seems to acknowledge this implicitly in so 
far as it agreed to adopt new control 
measures and to ensure compliance with 
them, particularly by issuing new instruc­
tions applicable as from the 1995/96 mar­
keting year. 
234. In addition, it should be noted that the 
Hellenic Republic does no more than reject 
the evidence submitted by the Commission 
without, however, adducing the slightest 
evidence in rebuttal capable of invalidating 
the Commission's analysis or its inferences 
from that analysis. 
235. The Court has also held that, in an 
action for annulment based on Article 173 
of the EC Treaty, the Court's sole task is to 
consider whether the pleas in law raised in 
support of the application are well foun­
ded. The Court is not required to increase 
or reduce any corrections which may prove 
to be inappropriate in the light, in particu­
lar, of the criteria laid down in Document 
No VI/216/93. 95 
236. This is why I consider that the plea 
designed to procure a downward revision 
of the correction of expenditure effected by 
the Commission must also be dismissed. 
237. Accordingly, I would ask the Court to 
find that the pleas relating to the expendi­
ture in respect of production aid for cotton 
for 1992 must be rejected. 
IV — The claims specific to Case C-243/97 
A — The correction applied in respect of 
failure to observe the deadlines for making 
payments to recipients of olive oil produc­
tion aid 
1. The relevant Community provisions 
238. Article 12b(l) of Regulation No 3061/84 
which lays down detailed rules for the 
application of the system of production aid 
for olive oil, as amended by Regulation 
No 928/91, 9 6 provides that, after fixing 
the average of the yields for the four 
previous marketing years, the Member 
States are to pay the production aid to 
growers whose average production is less 
than the quantity indicated in the first 
indent of Article 5(2) of Regulation 
9 5 — See, by analogy. Case C-253/97, at paragraph 8. 9 6 — See points 38 to 40 of this, Opinion. 
I - 5767 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
No 136/66, amended by Council Regula­
tion (EEC) No 1915/87 of 2 July 1987 97 
and Regulation No 2210/88,98 within 90 
days of submission of the aid application 
accompanied by evidence of processing of 
the olives at an approved mill. 
239. In accordance with Article 12b(2) of 
Regulation No 3061/84, as amended by 
Regulations Nos 98/89 9 9 and 928/91, 100 
the Member States are to pay the balance of 
the production aid to producers whose 
average output is at least equal to the 
quantity referred to in the first indent of 
Article 5(2) of Regulation No 136/66, 
amended by Regulations Nos 1915/87 
and 2210/88, within 90 days of the deter­
mination by the Commission of the actual 
production for the marketing year con­
cerned and of the unit amount of the 
production aid provided for in Arti­
cle 17a(3) of Regulation No 2261/84, 
amended by Regulation No 3500/90. 101 
240. Commission Regulation (EEC) 
No 2796/93 of 12 October 1993 amending 
Regulation No 3061/84102 added a new 
subparagraph to the abovementioned pro­
vision under which Greece and Portugal 
were authorised to pay the aid for the 
1992/93 marketing year by 15 October 
1993 at the latest. 
2. Facts 
241. Summary Report No 2 states that the 
EAGGF introduced a programme to check 
automatically whether or not the ceilings 
and deadlines for payments specified in the 
Community regulations were being com­
plied with. With regard to the payment of 
aid to recipients after the deadlines, the 
programme is designed automatically to 
refuse expenditure according to a sliding 
scale of penalties which takes account of 
the number of months of delay. 
242. Those provisions, after they had been 
discussed and approved at a meeting of the 
EAGGF Committee on 26 and 27 January 
1993, were confirmed in Document No VI/ 
488/92. 
243. All the Member States were officially 
informed about any overrun payment dead­
lines which affected them. 
244. The exchange of information led to 
the decision that the correction which 
97 - O J 1987 L 183, p. 7. 
98 — See points 28 to 30 of this Opinion. This provision states: 
'|T]he aid shall be granted to growers who are members of 
a producer group ... and who have an average production 
of at least 300 kilograms of olive oil per marketing year, on 
the basis of the quantity of olive oil actually produced by 
them'. 
99 — See point 49 of this Opinion. 
100 — See points 39 and 40 of this Opinion. 
101 — Ibidem, point 40. 
102 — OJ 1993 L 255, p. 1. 
I - 5768 
GREECE V COMMISSION 
would be applied in this respect to the 
Hellenic Republic would amount to GRD 
1 322 433 341. 
3. The actions 
245. The Hellenic Republic claims that this 
correction is unjustified on grounds of force 
majeure. In its submission, the competent 
departments did their utmost to pay the 
recipients by the deadlines, but the volume 
of cases checked and the purpose of the 
exercise, to check the regularity of pay­
ments, meant that those deadlines could 
not be scrupulously observed. 
246. The Commission points out that force 
majeure constitutes an exception to the 
general rule of strict compliance with the 
legislation in force and must, as such, be 
interpreted and applied restrictively. 
According to the case-law of the Court, 
the concept of force majeure implies either 
an absolute impossibility or an unusual 
circumstance beyond the control of the 
operator, the consequences of which could 
be avoided only at the price of excessive 
sacrifices, despite the exercise of all due 
care. 
247. It contends that in this case the 
Hellenic Republic has no basis on which 
to plead that concept as valid justification 
for the deficiencies of its administration, all 
the more so as the deadlines already 
constitute an extension of the deadlines 
set by Regulation No 3061/84 which was 
granted in view of Greece's difficulties. 
4. Assessment 
248. It is settled case-law 103 that force 
majeure must be understood as referring to 
unusual and unforeseeable circumstances 
which are beyond the control of the party 
by whom it is pleaded and the conse­
quences of which could not have been 
avoided even if all due care had been 
exercised. 
249. In this case, the Hellenic Republic 
cites an excessive workload caused by the 
influx of applications to be dealt with in the 
short period prescribed by Regulation 
No 2796/93. 
250. Those circumstances, as very properly 
pointed out by the Commission, cannot be 
described either as beyond the control of 
103 — See, in particular. Case C-263/97 First City Trading and 
Others [1998] ECR I-5537, at paragraph 38, and Case 
C-376/97 Wettwer [1999] ECR I-3449, at paragraph 30. 
I - 5769 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
the party relying on them, or as unforesee­
able, and therefore do not constitute a case 
of force majeure. 
251. The urgent processing, in accordance 
with the short time-limits imposed by 
Regulation No 2796/93, of the numerous 
applications submitted to the Greek autho­
rities was the result of the failure by those 
authorities to comply with the initial dead­
lines set by Regulation No 3061/84, as 
amended by Regulation No 98/89. 
252. As observed by the Commission in its 
answer to the Court's written question, 
Regulation No 2796/93 aimed to extend 
retroactively the deadlines which had not 
been observed by certain States, including 
the Hellenic Republic, because of the time 
required to carry out the relevant checks in 
certain remote areas, but still within the 
marketing year which ended on 15 October 
1993. The aim was not therefore to impose 
on Member States an obligation to make all 
payments within one day of the entry into 
force of that regulation but to acknowledge 
the payments made after those deadlines, 
by simultaneously setting the deadline at 
the end of the 1992/93 marketing year. 
253. As a result, I would ask the Court to 
reject the plea submitted by the Hellenic 
Republic as unfounded. 
B — The correction applied in respect of 
exports of olive oil from Greece to non-
member countries 
1. The relevant Community provisions 
254. Article 8(1) of Regulation No 729/70, 
on the financing of the common agricul­
tural policy, 104 provides that the Member 
States, in accordance with national provi­
sions laid down by law, regulation or 
administrative action, are to take the 
measures necessary to satisfy themselves 
that transactions financed by the Fund are 
actually carried out and are executed 
correctly, to prevent and deal with irregu­
larities, and to recover sums lost as a result 
of irregularities or negligence. 
255. Similarly, as we have seen, Arti­
cle 8(2) of that regulation provides that, 
in the absence of total recovery, the finan­
cial consequences of irregularities or negli­
gence are to be borne by the Community, 
with the exception of the consequences of 
irregularities or negligence attributable to 
administrative authorities or other bodies 
of the Member States. The sums recovered 
are to be paid to the paying authorities or 
bodies and deducted by them from the 
expenditure financed by the EAGGF. 
256. In addition, Article 9(1) of Regulation 
No 729/70 provides that Member States 
104 — See points 6 to 12 of this Opinion. 
I - 5770 
GREECE V COMMISSION 
are to make available to the Commission 
all information required for the proper 
working of the EAGGF and are to take all 
suitable measures to facilitate the super­
vision which the Commission may consider 
it necessary to undertake within the frame­
work of the management of Community 
financing, including inspections on the 
spot. Member States are to communicate 
to the Commission provisions laid down by 
law, regulation or administrative action 
which they have adopted for the applica­
tion of legal acts of the Community relating 
to the common agricultural policy in so fai­
as those acts have financial consequences 
for the EAGGF. 
257. Finally, I would also recall that Arti­
cle 9(2) of that regulation states that offi­
cials appointed by the Commission to carry 
out inspections on the spot are to have 
access to the books and all other documents 
relating to expenditure financed by the 
EAGGF. At the request of the Commission 
and with the agreement of the Member 
State, inspections or inquiries concerning 
the transactions referred to in that regula­
tion are to be carried out by the competent 
authorities of that Member State. Officials 
of the Commission may also participate. 
2. Facts 
258. Summary Report No 2 notes that, 
through 'unofficial' documents communi­
cated to the Commission, the EAGGF 
became aware of fraudulent exports of 
olive oil from Greece in the period from 
1990 to 1993. Containers supposedly con­
taining olive oil actually contained other 
products which were not eligible for export 
refunds. 
259. The result of the wide-ranging inves­
tigation carried out in 1993 and 1994 in 
Cyprus, Lebanon and Greece by the Com­
mission, with which the competent Greek 
authorities were sometimes associated, con­
firmed the reported fraud. 
260. The investigators found, during mis­
sions carried out in Cyprus and Lebanon, 
that a very small number of containers 
declared as having been exported to Aus­
tralia or the United States of America had 
actually given rise to false shipping declara­
tions from Piraeus to the port of the 
country of destination. It was found that 
the majority of the containers had only 
transited through the port of Limassol to be 
shipped to Beirut rather than Australia or 
the United States of America. Through the 
assistance of the Australian customs autho­
rities, it was found that only a very small 
percentage of containers declared as 
exported to Australia actually arrived there 
and that the majority of those that did 
arrive were declared to contain goods other 
than olive oil. 
261. The investigations conducted in Leba­
non also revealed that imports of olive oil 
into Lebanon were prohibited irrespective 
of their origin unless accompanied by an 
I - 5771 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
import licence issued by the competent 
Lebanese authorities; that, during the years 
1990 to 1992, no imports of olive oil 
declared to be of Greek origin had taken 
place, and that the consignments which 
were declared, on their exportation from 
Greece, to be of olive oil and were trans­
shipped via Cyprus, were declared as soya 
oil on their arrival in Lebanon. 
262. Finally, the Lebanese authorities had 
noted that imports of soya oil from Egypt 
had significantly increased in 1992. An a-
nalysis of the statistics showed that, from 
the middle of that year, Greece had claimed 
to have exported large quantities of olive 
oil to Egypt whereas trade in this type of 
product had previously been virtually non­
existent. A check on the movements of 
containers revealed that several containers 
had in fact been unloaded in the port of 
Limassol, although they had been declared 
as having been shipped directly to Egypt. 
263. Through the inquiry conducted in 
Cyprus in September 1994 by the Commis­
sion and intended to establish the content 
of the suspect containers, their transport 
arrangements and their destination, it was 
discovered that two Greek companies had 
made false declarations in Greece while 
exporting what was supposed to be olive 
oil to non-member countries in 1992 and 
1993. Examination ad hoc of the Cypriot 
customs documents revealed that the pro­
duct actually exported was soya oil. The 
investigators also discovered that a Greek 
company had made false declarations in 
Greece while exporting what was supposed 
to be olive oil to non-member countries 
during 1990 to 1993. 
264. Faced with such extensive fraud and 
given the Community rules in force which 
require Member States to subject all 
exports of olive oil to non-member coun­
tries to physical control, the investigators 
wondered about the extent of the Hellenic 
Republic's responsibility in this fraud. 
265. The mission to the Piraeus customs 
office and the National Laboratory in 
November 1994 revealed that this fraud 
had been made easier by the lack of actual 
and efficient controls in Greece. Thus, it 
emerged that no appropriate custom con­
trol had taken place, that the National 
Laboratory was unable to provide the 
slightest trace of analyses certifying the 
nature and quality of the oil and that, 
although the existence of the fraud had 
already been established, no steps had been 
taken to put a stop to the practices that 
were continuing or to investigate the con­
duct of the departments concerned. 
266. The investigators concluded that, by 
tolerating without demur a situation in 
which the customs authorities and National 
Laboratory certify, contrary to the facts, 
that a physical control of exports of olive 
oil had been carried out to the extent of 
I - 5772 
GREECE V COMMISSION 
100%, the Hellenic Republic had helped to 
foster a reeling of impunity among certain 
unscrupulous exporters who were able to 
engage in a fictitious trade in olive oil since 
they knew perfectly well that they did not 
run the slightest risk of a penalty for fraud. 
In so doing, the Hellenic Republic had 
infringed the provisions of Article 8 of 
Regulation No 729/70. 
267. Summary Report No 2 indicates, 
moreover, that the Greek authorities were 
unable to prove that, in their campaign 
against unlawful activities, they took suffi­
cient action to initiate the legal proceedings 
(both criminal and civil) that were neces­
sary in order to put an end to that kind of 
traffic. Moreover, they did not inform the 
EAGGF of the total amount of fraud 
committed by the operators subject to 
inquiry, despite the insistence of the 
EAGGF. 
268. As a result, the amounts relating to 
the companies in question were calculated 
on the basis of the quantities declared to 
have been exported to Egypt and Lebanon 
in 1992 and 1993. The financial correc­
tions applied under Article 8(2) of Regula­
t ion N o 729 /70 a m o u n t e d to GRD 
2 031 347 293 and GRD 2 413 383 890. 
269. The Greek authorities did not dispute 
the inquiry's conclusions but have claimed 
that, as they cooperated extensively with 
the Commission both in identifying and 
penalising the defrauders, they should not 
to be subject to the financial consequences 
of irregularities detected, as permitted by 
the provisions of Article 8(2) of Regulation 
No 729/70. 
3. The actions 
270. The Hellenic Republic does not dis­
pute either the existence or the amount of 
the fraud described in Summary Report 
No 2, but considers that in this case the 
financial consequences of that fraud are not 
attributable to it. It relies on the same 
arguments as those which it put forward in 
the inquiry and conciliation procedure. 
271 . The Commission, for the reasons 
expounded in Summary Report No 2, 
maintains its complaints. 
4. Assessment 
272. It must be observed that the Hellenic 
Republic does not dispute either the facts 
or the amount of the fraud detected by the 
EAGGF. In addition, it has not adduced any 
evidence capable of rebutting these find­
ings, particularly with regard to the total 
absence of physical controls by the customs 
I - 5773 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
authorities and the National Laboratory of 
exports of olive oil to non-member coun­
tries and the inferences which the Commis­
sion has drawn from this. 
273. Consequently, I can only ask the 
Court to find that the Hellenic Republic 
has failed to comply with its obligations 
under Article 8 of Regulation No 729/70 
and, in accordance with settled case-
law, 105 to reject the plea relating to the 
correction applied in respect of exports of 
olive oil from Greece to non-member 
countries. 
C — The corrections applied in respect of 
the public storage of cereals and missing 
quantities of durum wheat not declared 
1. The relevant Community provisions 
274. Commission Regulation (EEC) 
No 689/92 of 19 March 1992 fixes the 
procedure and conditions for the taking-
over of cereals by intervention agencies. 106 
Article 5 of that regulation provides that 
'[A]ny operator who stores bought-in pro­
ducts on behalf of the intervention agency 
shall monitor their presence and state of 
preservation regularly and inform the 
aforesaid agency without delay of any 
problem arising in that respect. 
The intervention agency shall check the 
quality of the stored product at least once a 
year. Samples for that purpose may be 
taken when the annual inventory is estab­
lished as provided for in Article 3 of 
C o m m i s s i o n R e g u l a t i o n (EEC) 
No 618/90.' 107 
275. The aforementioned Article 3 pro­
vides that the annual accounting inventory 
is to be verified by the storekeeper during 
the last two months of the financial year. 
That verification is to entail verification of 
the physical presence of the goods in 
accordance with a form, a model for which 
is given in an annex. 108 
2 7 6 . Counc i l R e g u l a t i o n (EEC) 
No 3492/90 of 27 November 1990 lays 
down the factors to be taken into consid­
eration in the annual accounts for the 
financing of intervention measures in the 
form of public storage by the EAGGF, 
Guarantee Section. 109 
105 — Case C-253/97, at paragraph 6. 
106 — OJ 1992 L 74, p. 18. 
107, Commission Regulation of 14 March 1990 laying down 
rules for drawing up the annual inventory of agricultural 
products in public storage (OJ 1990 L 67, p. 21). 
108 — This form must indicate the type of product stored, the 
name of the storekeeper, the description of the batch, the 
batch number, the weight entered, the weight checked, 
the weight verified and so on. 
109 — OJ 1990 L 337, p. 3. 
I - 5774 
GREECE V COMMISSION 
277. Article 2(1) of that regulation pro­
vides that 'Member States shall take all 
measures necessary to ensure the proper 
preservation of products which have been 
the subject of Community intervention.' 
278. Article 2(2) adds that 'Member States 
shall notify the Commission, at its request, 
of additional administrative provisions 
adopted for the application and adminis­
tration of intervention measures.' 
279. Article 5(1) provides that '[A]ll miss­
ing quantities and quantities which have 
deteriorated because of the physical condi­
tions of storage, transport, processing or by 
reason of overlong preservation shall be 
recorded in the accounts as having left the 
intervention stock on the date when the 
loss or deterioration was established.' 
2. Facts 
The public storage of cereals 
280. Summary Report No 2 describes per­
sistent deficiencies and negligence in the 
administration and control system for the 
public storage of cereals in Greece. Thus, it 
points out that quality checks by approved 
laboratories on lots offered for purchase 
were not being carried out on anonymous 
samples as required by ethical practice in 
this field and that the storage itself was 
unsatisfactory due to the absence of any 
systematic measuring of warehouses and 
silos by officials responsible for the physical 
controls. 
281. The EAGGF sent the Hellenic Repub­
lic specific recommendations so that appro­
priate measures could be adopted to 
remedy these irregularities. The attention 
of the Hellenic Republic was therefore 
drawn to the need to recruit qualified 
officials responsible for checking the lots 
offered on their entry into intervention 
stock or immediately thereafter, for physi­
cally inspecting the cereals and for verifying 
their quality. The Hellenic Republic was 
also asked to entrust national inspectors 
with the task of carrying out unannounced 
checks on the stocks and to do the same at 
regional level. 
282. The EAGGF pointed out that the 
Greek authorities were aware of the com­
ments made by their departments and have 
adopted specific measures with a view to 
improving the control system. Thus, with 
regard to the annual inventory, additional 
checks on the quantity and quality of stocks 
have been carried out on the initiative of 
the competent Greek authorities. 
I - 5775 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
283. Given that the Greek authorities, 
having acknowledged that the control sys­
tem put in place was deficient, started to 
make improvements to it, the EAGGF 
proposed applying a flat-rate correction of 
2% in respect of the public storage of 
cereals. The amounts of the financial 
correction thus applied were GRD 
82 224 025, GRD 54 471 120 and GRD 
97 597 184. 
The missing quantities of durum wheat 
284. Summary Report No 2 mentions the 
fact that, following the inquiry conducted 
by the EAGGF in Greece in 1992,1993 and 
1994, it was discovered that 22 721.164 
tonnes of durum wheat were missing from 
the intervention stocks contrary to the 
declarations made in that respect. 
285. The EAGGF treated those missing 
quantities as having left the stock accounts 
in May 1993. 
286. Noting that the Greek authorities had 
not taken account of this factor in their 
annual declaration, the Commission noti­
fied the Hellenic Republic on 25 April 
1996 that a correction in the amount of 
GRD 1 531 502 946 would have to be 
applied. 
3. The actions 
The public storage of cereals 
287. Although acknowledging the facts set 
out against it, the Hellenic Republic dis­
putes the flat-rate correction of 2% which 
was applied. It claims that its cooperation 
in good faith and its willingness to deal 
with the negligence and deficiencies 
detected should exempt it from any penalty. 
288. It also states that under its domestic 
law it cannot retroactively and unilaterally 
require the amendment of terms of con­
tracts concluded between the intervention 
agency and the economic operators even if 
the contracts in question contain clauses 
contrary to the provisions of the Commu­
nity regulations in force. 
289. The Commission maintains its com­
plaints. It points out, and this has not been 
denied by the Hellenic Republic, that the 
administration and control system at issue 
was retained until 1997 and that, conse-
I - 5776 
GREECE V COMMISSION 
quently, the negligence and deficiencies 
detected in this case actually continued 
during the 1993 financial year. 
The missing quantities of durum wheat not 
declared 
290. The Hellenic Republic acknowledges 
the facts but claims, first, that some 
amounts corresponding to missing quanti­
ties have subsequently been repaid and, 
second, that some sums have not been 
received because court proceedings are still 
pending in this respect. As regards the latter 
sums, the Hellenic Republic states that the 
EAGGF will be credited with the corre­
sponding amounts either voluntarily or 
through compensation at the end of the 
current court proceedings. 
291. The Commission maintains its com­
plaints and contends that, under Article 5 
of Regulation No 3492/90, the missing 
quantities having left the intervention stock 
must be recorded in the accounts on the 
date when the loss was established. 
292. It points out that the Hellenic Repub­
lic has not raised any objection to the 
consequences of the notification of this 
correction. 
4. Assessment 
The public storage of cereals 
293. According to settled case-law, 110 only 
intervention undertaken in accordance with 
Community rules is to be financed by the 
EAGGF and, where the Commission has 
doubts concerning a transaction which it 
considers to be justified by the surrounding 
facts or circumstances, it must withhold the 
sums corresponding to that transaction 
unless the Member State produces suffi­
cient evidence to dispel those doubts. 111 
294. Similarly, it has unfailingly been held 
that, in an action for annulment under 
Article 173 of the EC Treaty, the Court's 
only task is to consider whether the pleas in 
law raised in support of the application are 
well founded. It is not required to increase 
or reduce any corrections which may prove 
to be inadequate in the light, in particular, 
of the criteria laid down in Document No 
VI/216/93.1 1 2 
295. Finally, the internal relations between 
the Greek authorities and the parties con­
cerned, particularly following decisions 
delivered by national courts, do not affect 
110 — Case C-48/91, at paragraph 14, and Case C-253/97, at 
paragraph 6 (referred to in footnote 7 of this Opinion). 
1 1 1 — Case C-240/97. at paragraph 39. 
112 — See. by analogy. Case C-253/97, at paragraph 8. 
I - 5777 
OPINION OF MR LÉGER — CASES C-46/97 AND C-243/97 
the obligations of Member States arising 
from the Community regulations. 113 
296. It follows that the pleas of the Helle­
nic Republic relating to the correction 
applied in respect of the public storage of 
cereals must be rejected. 
The missing quantities of durum wheat not 
declared 
297. It should be pointed out that the 
Hellenic Republic has acknowledged the 
facts set out against it by the Commission. 
298. In addition, it is expressly stated in 
Article 5 of Regulation No 3492/90 that 
the missing quantities of durum wheat must 
be recorded in the accounts as having left 
the intervention stock on the date when the 
loss was established. 
299. The Commission is required to com­
ply with the rules thus laid down by the 
Community regulations and cannot dero­
gate from them by allowing Member States 
to apply them differently, for example by 
providing compensation. 
300. Finally, with regard to the argument 
pleading pending court proceedings in 
justification of the delay in repaying the 
sums unduly received, I have already said 
that the relations between the Greek autho­
rities and the parties concerned, particu­
larly following decisions delivered by the 
competent national courts, do not affect the 
obligations of Member States arising from 
the Community regulations. 
301. Consequently, it follows from all the 
foregoing considerations that the pleas 
raised by the Hellenic Republic in these 
cases must be rejected in their entirety. 
302. Under Article 69(2) of the Rules of 
Procedure, the unsuccessful party is to be 
ordered to pay the costs if these have been 
applied for. 
303. That provision falls to be applied in 
these two cases. 
304. In Cases C-46/97 and C-243/97, the 
Hellenic Republic must therefore bear its 
own costs and pay those incurred by the 
Commission. 113 — See, for example and by analogy, Case C-263/96, at 
paragraph 27. 
I - 5778 
GREECE V COMMISSION 
Conclusion 
305. I therefore conclude that the Court should: 
In Case C-46/97 
(1) dismiss the application; 
(2) order the Hellenic Republic to bear its own costs and pay those incurred by 
the Commission. 
In Case C-243/97 
(1) dismiss the application; 
(2) order the Hellenic Republic to bear its own costs and pay those incurred by 
the Commission. 
I - 5779