Opinion of Mr Advocate General Mischo delivered on 9 October 1990. - Commission of the European Communities v Hellenic Republic. - Obligation to provide fishery information. - Case C-200/88.



European Court reports 1990 Page I-04299



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The application brought by the Commission against the Hellenic Republic seeks a declaration that by omitting to forward within the stipulated periods certain information relating to the quantities and prices of fish caught by Greek vessels or imported from non-member countries, the Hellenic Republic has failed to fulfil its obligations under Articles 11(1 ) and ( 3 ), 15(2 ) and 21(3 ) of Council Regulation ( EEC ) No 3796/81 of 29 December 1991 on the common organization of the market in fishery products ( Official Journal 1981 L 379, p . 1, hereinafter referred to as "the basic regulation "), as well as under certain provisions of the Commission' s implementing regulations, Regulations ( EEC ) Nos 3191/82 and 3598/83 . I would refer to the Report for the Hearing for a description of the relevant legislative provisions .

2 . The Hellenic Republic stresses the fact that there has been a gradual improvement in the supply of information to the Commission, but accepts that, during the period preceding the institution of the present action, the information it sent to the Commission did not satisfy the Community rules as regards content, form and timing .

3 . In its statement of defence, however, the Hellenic Republic requested the Commission "to consider the advisability of adding to the already very large number of cases before the Court by means of proceedings which, as in the present instance, are of no legal significance and refer only to matters of fact ".

4 . However, it must be acknowledged in this regard that the information in question is necessary in order properly to fix the guide prices, reference prices, and free-at-frontier prices which, for their part, have an essential role to play in the various market support mechanisms which may enter into operation in order to protect the interests of Community fishermen .

5 . The Court has consistently held, moreover, that whether an action is to be brought against a Member State for failure to fulfil its obligations is a matter entirely within the discretion of the Commission . ( 1 )

6 . The Hellenic Republic explains that it encountered structural difficulties in the organization of its services which prevented it from correctly complying with all its obligations .

7 . It is, admittedly, understandable that a new Member State may experience difficulties in complying with requirements under Community law which impose very heavy and, undoubtedly, slightly too onerous administrative duties, as is shown by the adoption of Commission Regulation ( EEC ) No 1106/90 of 18 April 1990, ( 2 ) which eased from 1 January 1991 the obligations imposed on Member States by Regulation No 3598/83 .

8 . However, the fact is that the version of the regulation on the common organization of the market in fishery products which is here in question and the relative implementing regulations were adopted only after the accession of Greece, which became effective on 1 January 1981 . Furthermore, it was only on 7 October 1986 that the Commission sent the letter of formal notice instituting the infringement procedure which led to the present application . The latter was not brought until 21 July 1988 . The Hellenic Republic therefore had a considerable amount of time to set up the necessary administrative structures, and the Commission cannot be criticized for having adopted an attitude "incompatible with the principle of cooperation which must govern relations between the Member States and the Community institutions" ( p . 3 at the conclusion of the statement of defence ).

9 . In any event, so long as there is no dispute as to the validity and applicability of the provisions relied on by the Commission, which is certainly the case in the present proceedings, the Court is under an obligation to take cognizance of the obligations which they impose and to rule that those obligations have not been complied with .

10 . I must therefore suggest that the Court apply its established case-law, according to which :

"a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations and time-limits resulting from Community law ". ( 3 )

11 . More recently, the Court replied in like terms to a similar argument in its judgment in Case C-48/89 Commission v Italian Republic [1990] ECR I-2425, where the defendant, as in the present case, had pleaded difficulties in applying the measure which required it to supply certain information to the Commission . In that case the Court confirmed its earlier judgments to the effect that :

"practical difficulties which appear at the stage when a Community measure is put into effect cannot permit a Member State unilaterally to opt out of fulfilling its obligations ". ( 4 )

12 . In conclusion, I propose that the Court declare that by omitting to forward within the stipulated periods certain information relating to the market in fish, the Hellenic Republic has failed to fulfil its obligations under Articles 11(1 ) and ( 3 ), 15(2 ) and 21(3 ) of Council Regulation ( EEC ) No 3796/81, under Article 2 of Commission Regulation ( EEC ) No 3191/82 and under Articles 1 to 3 of Commission Regulation ( EEC ) No 3598/83, and order the defendant to pay the costs .

(*) Original language : French .

( 1 ) See, in particular, the judgment in Case 416/85 Commission v United Kingdom [1988] ECR 3127, paragraph 9 .

( 2 ) Regulation on the communication of information for the purposes of the common organization of the market in fishery products ( OJ 1990 L 111, p . 50 ).

( 3 ) See, in particular, the judgment in Case 254/83 Commission v Italian Republic [1984] ECR 3395 .

( 4 ) See, in particular, the judgments in Case 128/78 Commission v United Kingdom [1979] ECR 419 and in Case 39/72 Commission v Italian Republic [1973] ECR 101 .