OPINION OF ADVOCATE GENERAL

GULMANN

delivered on 16 June 1992 ( *1 )

Mr President,

Members of the Court,

1. In this case the Commission has applied for a declaration that the Hellenic Republic, by putting matches on a special ‘list D’ and subsequently, during specified periods, refusing to grant permission for the importation of matches originating in Sweden and Bulgaria, has failed to fulfil its obligations under Community law. The Commission has also applied for a declaration that Greece has infringed Article 5 of the EEC Treaty. The Hellenic Republic has claimed that the case should be dismissed. The Commission's application requested the Court to consider: — first, whether there was a List D (or List Delta) with the content alleged by the Commission; and — secondly, whether that List D resulted in the rejection of applications by importers of Swedish and Bulgarian matches for import permits. ( 1 )

2. The Commission claims that there was in Greece in the relevant period a system — the so-called List-D system — according to which importers of specified products from third countries, including matches, were to apply for an import permit and the competent Greek authorities could, if they thought fit, refuse the permit. ( 2 ) The Greek Government states that such an arrangement did exist but it was abolished by decision of the Greek Minister for Trade of 25 November 1980. The government denies that any arrangement incompatible with Community rules existed after that date. The government does not deny that importers of certain goods from third countries, including matches, had to apply for an import permit but claims that that arrangement was purely for statistical purposes.

3. It is not clear from the Greek Government's pleadings whether the government accepts that the aforesaid arrangement for statistical purposes was called the ‘List-D system’, or whether that concept was entirely abolished in 1980. In my view there are good grounds for assuming that in fact a system called the ‘List-D system’ did exist in Greece also in the period after 1980 and in any case until the end of 1990. That assumption is confirmed in particular in a letter sent on 25 September 1990 from the Greek Ministry of Trade to the Greek Ministry for Foreign Affairs which, with reference to this case, had asked the Ministry of Trade about the existence and meaning of ‘Procedure Delta’. The Ministry of Trade wrote as follows: ‘... that the alleged “Procedure Delta” is a form of statistical monitoring and that it was introduced because of the constant need to know the trend of and developments in imports of various sensitive products’. ( 3 ) In spite of the word ‘alleged’ it seems to emerge from the letter that there did exist an arrangement designated by the letter ‘Delta’. The assumption is also supported by the information available in this case concerning imports from Bulgaria and Sweden. The concept of ‘List D’ is used by the firms involved as cover for the Greek authorities' power to refuse importation and the letter ‘D’ is in any case to be found, as will be mentioned later, on one of the applications for an import permit produced in this case.

4. Against this background, the decisive question in this case is whether the import system thus described was, as claimed by the Commission, of such a nature as to constitute a quantitative restriction contrary to the rules which at the relevant period applied to trade with Bulgaria and Sweden, or whether, as claimed by Greece, it served a purely statistical purpose and did not therefore represent a quantitative restriction contrary to rules in force. The Greek Government does not dispute that it would have been contrary to Greece's obligations under Community law if there had been an arrangement for regulating imports of the nature described by the Commission, that is, an arrangement according to which applications for permits to import matches from Bulgaria and Sweden could be and were refused. There is also no doubt that such a system conflicts with the following provisions: — as far as imports from Bulgaria are concerned, Article 6 of Regulation (EEC) No 3420/83 of 14 November 1983 on import arrangements for products originating in State-trading countries, not liberalized at Community level ( 4 ) as subsequently amended; and — as far as imports from Sweden are concerned, Article 1(2) of Regulation (EEC) No 288/82 of 5 February 1982 on common rules for imports ( 5 ) and Article 13 of the Agreement between the European Economic Community and the Kingdom of Sweden, ( 6 ) as amended by the Additional Protocol in respect of Greece. ( 7 )

5. The parties therefore disagree only as to the facts of the case. The Commission claims that during the material period the List-D system covered a series of goods which were especially ‘sensitive’ in the Greek authorities' view. In any event the system covered matches, but it also appears from the proceedings that the Commission had received complaints about an application of the List-D system to imports of sheet glass, inter alia from Turkey, and of honey from Bulgaria. ( 8 ) If the import system described by the Commission has been applied to several groups of products and over lengthy periods, it may seem surprising that the Commission was not in a position to produce firmer and more comprehensive evidence to support its claim that the system existed. This must however be seen against the background of the difficulties which the Commission clearly had in obtaining a satisfactory reply from the Greek Government to its many approaches in connection with the complaints made to the Commission.

6. The decisive question in this case is whether the Commission has been successful in establishing the existence of a List-D system which has involved during certain periods a refusal of permission to import matches from Bulgaria and Sweden.

7. In this connection it is not irrelevant that the Greek State commercial monopoly for matches had been adapted in accordance with Community rules in such a way that the importation of matches was covered, from 1 January 1986, by general Community law. Against this background it is reasonable to assume that the Greek authorities were following the importation of matches with particular attention. The Greek authorities also submitted an application to the Commission on 21 July 1987 under Regulation No 288/82 for Community surveillance of imports of matches from Sweden. On 3 August 1987 the Commission rejected the application, but agreed to Greece's introducing national surveillance. The Greek Government also approached the Commission on 25 November 1987 with a request for protective measures to be taken under Regulation No 3420/83 with regard to importation of matches from Bulgaria. At the same time it stated that in pursuance of Article 10 of that regulation it would be applying national quota rules to such imports from the date of the application. It was only on 27 April 1988 that the Commission authorized restrictions on imports from Bulgaria. That authorization was to last until 31 December 1988. The Commission recognized that the Greek application for urgent national measures under Article 10 met the conditions of that provision, so that restrictions could lawfully be applied to imports from Bulgaria from 25 November 1987. The Commission has explained that the government, in connection with its request for surveillance measures in relation to importation of matches from Sweden, supported its application inter alia by stating that the national match industry's former market share had been reduced by 60%.

8. In its arguments the Commission emphasizes that on 7 May 1986 the National Bank of Greece sent the following telegram to its branches and to the Greek commercial banks: ‘With effect from the receipt of this telegram permits for the importation of matches from nonmember countries of the EEC or manufactured in nonmember countries of the EEC are to be issued exclusively by the head office of the National Bank of Greece, Import Permit Department. Commercial banks must send applications for such permits to this head office. It is emphasized that as regards permits already issued for imports of the abovementioned products, commercial banks must not make advance payment or open credits without authorization from the head office of the National Bank of Greece. Managers of commercial banks are requested to inform their branches urgently today.’ ( 9 ) The Greek Government explained the telegram by saying that it was desirable to make statistical information available to the National Bank as soon as possible. One must however agree with the Commission that the content of the telegram is hard to understand if it concerns arrangements solely for statistical purposes.

9. One important argument in support of the Commission's claim is that it is common ground that in February 1987 the National Bank of Greece refused, without giving any reason, an application for a permit to import a large consignment of matches from Bulgaria, that that refusal was maintained and that the importer was unable to obtain any reason for it. The Commission has annexed a photocopy of the application for an import permit. ( 10 ) It has been noted in manuscript on the application that it has been refused. In addition the letter ‘D’ has been entered by hand. In October 1987 the Commission asked the Greek Government for an explanation of this refusal. The Greek Government gave an explanation which to the best of my judgment is unsatisfactory. ( 11 )

10. It is the information given by the Commission as to the Greek authorities' refusal to authorize the importation of matches from Sweden which, in my opinion, shows most convincingly that at the material time there must have been an import system in Greece with a content such as that alleged by the Commission. Included as an annex to the Commission's application are a series of letters and other documents, showing that the Greek authorities consistently refused to give authorizations for the importation of matches produced by the Swedish Match Company and that that practice began at all events in February 1987 and persisted until at least November 1989. ( 12 ) The annexes also show that there were various discussions between the Greek Ministry of Trade, in some cases represented by the Minister himself, and the Swedish Ambassador in Athens, but that it was impossible to obtain any plausible explanation as to why the desired importation could not take place. ( 13 ) These annexes contain a specimen of an application for the importation of matches from Sweden on which, in the same way as in the previously mentioned Bulgarian application, there is simply a handwritten notice of refusal. ( 14 ) The Greek authorities originally sought to justify the specific refusal referred to in the proceedings by claiming that the imported matches originated not in Sweden but in Yugoslavia. During the proceedings before the Court the government admitted that that justification could not be upheld.

11. Now the Greek Government claims that the refusals of the applications referred to are mere isolated instances which cannot be used as evidence that the list-D system alleged by the Commission was applicable. In my view that cannot be accepted. The treatment of imports of matches from Sweden above all shows such consistency in practice that it can only be regarded as the outcome of the application of a Greek system in force during the relevant period, empowering the Greek authorities to prohibit the importation of matches from third countries.

12. As already mentioned, the Greek Government has referred to a decision of 1980 which, according to the government, involved the abolition of the List-D import system. ( 15 ) In my view no importance can be attached to that decision. In the first place the decision, according to its wording, involved only an abolition of ‘the distinction between List D and List E’, and in the second place there is nothing to prevent the reintroduction of a formerly existing List-D system, for example in connection with the adaptation of the State trading monopoly for matches.

13. On the basis of the foregoing considerations it may, in my opinion, be assumed that a List-D system existed in Greece in any case during the period from February 1987 to November 1989 with the content alleged by the Commission and that that system led to the refusal, contrary to the Community rules applicable, of the importation of matches from Sweden between February 1987 and November 1989 and from Bulgaria between February and November 1987. My view is therefore that the Court must find for the Commission as regards the first part of its claim.

14. As already stated, the Commission has also claimed a declaration that the Hellenic Republic, by not informing the Commission of the relevant rules regarding the procedure with regard to imports, that is, as regards the said List D, has failed to fulfil its obligations under the first paragraph of Article 5 of the EEC Treaty. As the Court has consistently held, ( 16 ) it is the duty of the national authorities to give the Commission their loyal assistance when it is examining whether Community law has been observed in the country concerned. In this case the Greek Government has failed so to act, since it is established that in spite of many requests the government did not inform the Commission of the rules which, according to the foregoing observations, must have been applicable in Greece. It follows clearly from the Court's consistent case-law that the burden of proof that given Community rules have not been observed in a Member State rests upon the Commission, but that burden of proof does not exclude — but rather presupposes; the Member States' duty to give the Commission all the loyal assistance it requires when it has to elucidate the circumstances of law and of fact which are of significance for assessing whether the State in question is fulfilling its Community obligations. That duty to supply information also applies even where the information required by the Commission may be used as evidence that the Member State has failed to fulfil its obligations under Community law. The second part of the Commission's claim must therefore also be upheld.

Conclusion

15. I shall accordingly propose that the Commission's claim be accepted in its entirety and that the Greek Government be ordered to pay the costs.

( *1 ) Original language: Danish.

( 1 ) Undoubtedly in bringing the application the Commission's purpose was to establish that in any case and at a given penod there was a so-called List D, and that that list, because it required permission for the importation of goods from third countries, was incompatible with Community rules prohibiting quantitative restrictions on imports into the Community of goods from third countries.

Greece contends that the Commission's sole purpose in bringing this action was to establish that there was a List D with the legal effects claimed by the Commission. It thinks that establishing whether authorization to import matches from Sweden and Bulgaria was in fact refused has no relevance for a decision in this case.

( 2 ) The Commission describes the concept of ‘List D’, which is also referred to in the pleadings as ‘Procedure D’, as follows: It concerns ‘an internal list drawn up by the Ministry of Trade and the National Bank of Greece. List D covers certain products for the importation of which into Greece from third countries a prior import permit is required. The Commission assumes that the number and type of products covered at any one time by List D varies according to decisions taken by the Ministry of Trade, whose responsibility it is to draw up the list, which has never at any ame been officially Çublished in Greece but is secretly kept by the Ministry of rade and the National Bank of Greece’ (see application, p. 2.)

( 3 ) See Annex 2 to the defence.

( 4 ) OJ 1983 L 346, p. 6.

( 5 ) OJ 1982 L 35, p. 1.

( 6 ) OJ 1972 L 300, p. 97.

( 7 ) Council Regulation (EEC) No 3397/80 of 8 December 1980 (OJ 1980 L 357, p. 104).

( 8 ) In any case the Greek authorities had refused in individual cases to give permission for the import of these products and the Commission started proceedings in this connection under Article 169 of the Treaty, but did not pursue them.

( 9 ) See Annex 22 to the application.

( 10 ) See Annex 2 to the application.

( 11 ) See Annex 3 to the application. The answer, as far as I can see, does not deal with the background or the legal basis of the rejection of the original application for an import permit.

( 12 ) See Annex 25 to the application.

( 13 ) I refer in particular to Annexes 4a, 4b, 6, 7, 8, 9, 10, 14 and 24 to the Commission's application.

A letter of 8 May 1987 from the Swedish Ambassador to the Greek Minister for Trade states inter alia:

‘On 5 May Mrs Pantazi's secretary stated that Mrs Pamazi still had instructions not to grant any permit for the importation of Swedish matches into Greece’ (Annex 4b).

A letter of 11 July 1989 from the Swedish Match Company to a Commission official states:

‘Yesterday I received a fax from the First Secretary of the Swedish Embassy in Athens, Esbjörn Sköld. Mr Angelopoulou, the Minister for Trade, has informed the Swedish Embassy that the following products were covered by Procedure D:

pistachio nuts, ground nuts, chick peas (roasted), hazel nuts, sponges (natural), matches and gold. Procedure D implies that the Greek authorities are attempting to block imports of such products and to protect domestic producuon.’ (Annex 14).

( 14 ) See Annex 5 to the application.

( 15 ) See Annex 1 to the defence.

( 16 ) See for example the judgments of the Court in Case C-35/88 [1990] ECR I-3125, Case 272/86 [1988] ECR 4875 and Case 240/86 [1988] ECR 1835, all delivered in cases between the Commission and Greece.