Opinion of Mr Advocate General Jacobs delivered on 15 December 1992. - Hellenic Republic v Commission of the European Communities. - Clearance of EAGGF accounts - 1988 financial year. - Case C-56/91.



European Court reports 1993 Page I-03433



Opinion of the Advocate-General

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My Lords,

1. In these proceedings Greece seeks the annulment under Article 173 of the EEC Treaty of Commission Decision 90/644/EEC (OJ 1990 L 350, p. 82) in so far as it concerns the clearance, in respect of the expenditure for 1988 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund ("the Fund"), of the accounts presented by Greece in certain sectors.

2. The present case follows a series in which the conduct of the Greek authorities in managing agricultural produce has been in issue. See, in particular, Case C-259/87 Greece v Commission [1990] ECR I-2845, Case C-334/87 Greece v Commission [1990] ECR I-2849, Case C-35/88 Commission v Greece [1990] ECR I-3125, Case C-335/87 Greece v Commission [1990] ECR I-2875, Case C-32/89 Greece v Commission, [1991] ECR I-1321, Case C-110/89 Commission v Greece [1991] ECR I-2659, Case C-61/90 Commission v Greece [1992] ECR I-2407 and Case C-385/89 Greece v Commission [1992] ECR I-3225. There is, however, as I shall explain, some prospect that the present case may be the last in the line.

3. It appears from Article 1 and the annex of the decision in issue in the present case (hereafter "the contested decision") that the expenditure which the applicant wished to charge to the Fund as falling under the clearance of accounts for 1988 amounted to DR 169 057 420 413. Of this, the Commission recognized DR 167 404 485 562 as chargeable to the Fund, leaving DR 1 652 934 851 to be borne by the applicant. According to the applicant, that sum comprises a number of amounts which the Commission should have recognized as chargeable to the Fund.

4. The applicant was informed of the corrections which the Commission intended to make to the applicant' s accounts in the course of bilateral discussions which took place prior to the adoption of the contested decision. The reasons for the approach taken by the Commission are set out in the summary report concerning the results of investigations carried out in connection with the clearance of accounts for 1988, extracts from which are annexed to the Commission' s defence.

5. In its application the Greek Government presented in substance eight separate claims, two of which were withdrawn in the course of the proceedings. I proceed, therefore, to examine in turn the remaining six.

(a) Sales of common wheat: compliance with the judgment of the Court in Case C-259/87 Greece v Commission

6. The applicant claims that in breach of Article 176 of the Treaty the Commission has failed to give proper effect to the judgment of the Court in Case C-259/87 Greece v Commission [1990] I-2845. In that case the Court quashed the decision on the clearance of the accounts in respect of expenditure to be charged to the Fund for 1983 (Decision 87/368, OJ 1987 L 195, p. 43) in so far as the Commission had not charged to the Fund expenditure declared by Greece relating to the sale of two consignments of 30 000 tonnes of common wheat. As a result of that judgment, the Commission accepted in the clearance relating to 1988 that a sum of DR 596 040 000 in respect of 1983 should be charged to the Fund. The applicant claims that in order to comply with the judgment of the Court the Commission must recognize as chargeable to the Fund all the expenditure incurred in respect of the sales in question, which came to DR 875 015 976 plus interest. The applicant asks the Court to annul the decision in so far as it only recognizes the lower amount. In the alternative, the applicant claims that the judgment of the Court should be interpreted as meaning that the only amount which should not be recognized as chargeable to the Fund is the amount of the difference between the price of purchase and the price of sale of the two consignments. In that case, the amount disallowed would be DR 83 340 000 and not DR 278 975 976 as calculated by the Commission.

7. The Commission argues that the actual price for which the consignments were sold is DR 596 040 000 and that, according to the decision of the Court, it is this sum which should be returned to Greece.

8. In my view, the submission of the Commission should be upheld. As the Commission points out, it would be under an obligation to credit Greece with all the expenditure relating to the sale of the two consignments only if that sale had taken place in accordance with Community rules. In Case C-259/87 the Court held that the sale of the two consignments did not comply with the requirements of Community law and consequently the Commission was justified in disallowing an amount equal to the theoretical price of the consignments calculated according to Article 3(2) of Council Regulation (EEC) No 3247/81 (OJ 1981 L 327, p. 1) plus the costs of their removal from the intervention system. The Court held, however, that the Commission' s refusal to deduct from that theoretical price the sums received as a result of the irregular sales resulted in the unjust enrichment of the Fund and was contrary to Community law. Consequently, the Court annulled the decision of the Commission to the extent that it refused to recognize as chargeable to the Fund "the amount representing the sums received on the sale of the two consignments" (see paragraph 1 of the operative part of the judgment and paragraph 27 of the judgment). It is not disputed that the actual amount received from the sale of the two consignments is DR 596 040 000. It follows that the Commission was correct in charging only that amount to the Fund.

9. As regards the claim of the Greek Government that interest should be added to the amount due, the Commission argues that it is standard practice not to charge interest in the context of financial transactions of this type between the Community and the Member States. The Commission also argues that, on balance, this practice benefits Member States which often hold illegally and for long periods substantial Community funds which are deducted without interest from the advances of subsequent financial years. The Commission adds that it has not attempted to calculate interest on the sums that have been charged to the Fund illegally by Greece in previous financial years. In my view, these arguments are persuasive and should be accepted. I consider, therefore, that the claim of the applicant in relation to interest must fail.

10. I conclude that the applicant' s claim that the Commission failed to give proper effect to the judgment of the Court in Case C-259/87 should be dismissed.

(b) Storage costs relating to olive residue oil: compliance with the judgment of the Court in Case C-334/87 Greece v Commission

11. The applicant alleges that in breach of Article 176 of the Treaty the Commission has failed to give proper effect to the judgment of the Court in Case C-334/87 Greece v Commission [1990] ECR I-2849 (as rectified by Order of the Court of 20 September 1990). In that case the Court annulled the Commission' s decision on the clearance of the accounts for 1984 (Decision 87/468, OJ 1987 L 262, p. 23) in so far as it disallowed expenditure declared by Greece relating to the storage costs for a consignment of olive residue oil (described in the contested decision as a "olive-pomace oil") for the period from 14 March to 7 August 1984. As a result of that judgment, the Commission accepted in the clearance of accounts for 1988 that a sum of DR 9 389 270 in respect of 1984 should be charged to the Fund. The applicant claims that this amount does not cover all the costs which ought properly to be borne by the Fund and seeks the annulment of the contested decision in so far as it does not recognize as chargeable to the Fund a sum of DR 4 704 109 representing storage costs for an additional period of 48 days.

12. The origin of this claim lies in an invitation to tender as a result of which a consignment of olive residue oil from the stocks of the Greek intervention agency was sold in July 1983. Under Article 13 of Regulation (EEC) No 2960/77 (OJ 1977 L 348, p. 46), the purchaser was required to withdraw the oil within 60 days of notification of the result of the tender. In reply to queries from the Greek authorities the Commission clarified, by telex of 8 November 1983, certain points regarding the requirements of Community law. The Commission confirmed by a further telex of 20 December 1983 that the Fund would cover the storage costs relating to the consignment until the expiry of the period for withdrawal. Following the telex of 8 November 1983, the Commission took the view that there could be no further uncertainty as to the meaning of the Community requirements. In its decision on the clearance of the accounts for 1984, therefore, the Commission refused to charge to the Fund the storage costs from 1 February 1984 (i.e. the beginning of the month following the expiration of the 60 days time-limit calculated from the telex of 8 November) until actual delivery of the oil took place in October 1984. However, in Case C-334/87 the Court held that the relevant Community provisions were not clear as to whether security had to be lodged by the purchaser and, consequently, that the applicant was justified in not proceeding with the transaction until the Commission stated its position. The Court held that the storage costs for the period from 14 March, the date when a query was submitted by the Greek authorities on this issue, to 7 August, the date when the Commission gave its answer, were chargeable to the Fund.

13. The applicant argues that the starting point of the 60 days time-limit should be calculated with reference to the Commission' s telex of 20 December. Therefore, the applicant claims, it should be charged for the storage costs incurred from 18 February and not from 1 February as calculated by the Commission. However, the Court expressly rejected at paragraph 48 of the judgment the arguments of the applicant in relation to the period between 1 February and 14 March 1984. This submission must therefore fail.

14. The applicant also alleges that the answer of the Commission to the query concerning storage costs was given on 9 August and not on 7 August as stated in the judgment of the Court. It is clear, however, that by this argument, in support of which no evidence is produced, the applicant disputes in substance not the execution of the judgment by the contested decision but the judgment of the Court itself. The argument must, therefore, be rejected.

15. Finally, the applicant claims that according to its calculations the Commission charged the Greek State with the storage costs for a period of 124 days instead of a period of 76 days as it ought to have done in order to comply with the judgment of the Court. The applicant, however, does not provide any evidence to dispute the calculations of the Commission, according to which the Greek State was charged with the storage costs in conformity with the judgment of the Court. This argument, therefore, must also fail.

16. I conclude that the applicant' s claim that the Commission failed to give proper effect to the judgment of the Court in Case C-334/87 should be dismissed.

(c) Export refunds for animal feed

17. The applicant seeks the annulment of the contested decision in so far as an amount of DR 869 296 279 is not recognized as chargeable to the Fund in respect of export refunds for animal feed. To justify the disallowance, the Commission relies on the judgments of the Court in Case C-35/88 Commission v Greece [1990] ECR I-3125 and Case C-32/89 Greece v Commission [1991] ECR I-1321. In Case C-35/88 the Court held on the basis of compelling evidence produced by the Commission that between 1981 and 1984 KYDEP (Central Office for the Management of National Produce) intervened in the cereal sector as an agent of the State and that, contrary to Community law, its deficits were covered by the State. In Case C-32/89 the Court concluded that the Greek State controlled KYDEP' s operations and covered its deficits also for the financial year 1986. The Commission argues that no evidence has been submitted by the applicant to show that the relationship between the State and KYDEP has changed. On the contrary, according to a report of the Agricultural Bank of Greece on KYDEP' s affairs dated 26 January 1990, KYDEP incurred a deficit during 1988 (as well as during the financial years 1985 to 1987) as a result of its intervention in the animal feed sector. This deficit is described in KYDEP' s records as "claims against the State". The Commission further argues that the Greek Government has refused its repeated requests to inspect the administrative and accounting records of KYDEP. The Commission claims that since it was unable to establish whether the export refunds for animal feed were eligible to be financed by the Fund, it had no option but to disallow the total amount for 1988.

18. The applicant submits a number of arguments to dispute the disallowance. First, the applicant argues that each financial year has an autonomous character. Evidence relating to previous financial years cannot justify the refusal to recognize expenses incurred in 1988. The applicant also argues that the decisions of the Court in Cases C-35/88 and C-32/89 related to previous financial years whereas the present dispute relates to a different set of facts. According to the applicant, during 1988 the Greek State did not subsidize any of KYDEP' s activities in the animal feed sector. In support of this argument, the applicant submits a letter dated 24 January 1991 sent by KYDEP' s director general to the Ministry of Agriculture. It also submits a copy of KYDEP' s accounts for 1988 and an extract from the annual report of KYDEP' s financial department. Further, the applicant claims that the contested disallowance is based on an erroneous interpretation of the term "State aid". It argues that what the report of the Agricultural Bank of Greece describes as KYDEP' s claims against the State are not "State aids" within the meaning of Article 92 of the Treaty.

19. It must first be noted that in its submissions in Case C-35/88 the Greek Government itself admitted that the subsidies granted to KYDEP should be described as State aids. On this basis, the Court held that by not notifying to the Commission plans for aid to KYDEP for the purchase and sale of feed grain, Greece had failed to fulfil its obligations under Article 93(3) of the Treaty. As stated above, in its judgment in Case C-32/89 the Court held that this practice continued for the financial year 1986: see also Case C-61/90 Commission v Greece, already cited. It is therefore clear that KYDEP' s deficits were absorbed by State funds for a number of years. The applicant does not dispute that KYDEP incurred a deficit as a result of its intervention in the animal feed sector in 1988, nor that this deficit was entered in KYDEP' s records as "claims against the State", but, as I have mentioned, asserts that the State did not subsidize any of KYDEP' s activities in that sector in that year. In my view, however, even if it is accepted that the Greek State did not make any payments to KYDEP in order to cover that deficit, this does not prove that KYDEP did not intervene in the animal feed market contrary to the requirements of Community law in the period with which the contested decision is concerned. In the light of the standard practice followed in previous years, the reference in KYDEP' s records to "claims against the State" indicates that KYDEP' s deficit continued to be perceived as a financial liability on the part of the State and gives rise to a strong inference that KYDEP continued its intervention in the animal feed sector on the instructions of the State and in the expectation that its losses would be met by State funds.

20. Furthermore, as appears from the documents submitted to the Court, by a letter of 3 April 1990 the Commission expressed its willingness to review the amount of the disallowance, provided that the Greek authorities submitted precise and concrete evidence and permitted the Commission to carry out inspections in order to examine the animal feed market in Greece and the financial relations between KYDEP and the Greek State. The Commission also requested in its letter that the relevant evidence and permission to carry out the inspection should be provided by 30 April 1990 so as to enable the Commission to proceed with the clearance of the accounts for 1988 within the specified deadlines. By a letter of 4 May 1990, the Greek Government refused the inspection on the ground that KYDEP was an institution governed by private law. Subsequently the Court held in its judgment of 12 July 1990 in Case C-35/88 that by refusing to communicate to the Commission information on the functioning of KYDEP, the applicant had failed to fulfil its obligations under Article 5 of the Treaty. The applicant argues that in March 1991 it invited the Commission to carry out inspections on KYDEP. The applicant claims that if such inspections had been carried out in June 1991, as the Commission had initially agreed, the applicant would be able to prove its contentions. However, the Commission argues, and the Government does not dispute, that at the express request of the Greek authorities the inspections would only refer to future financial years and not to the financial year with which the contested decision was concerned. This submission, therefore, must also fail.

21. In my view, therefore, on the basis of the evidence available to it, the Commission was not able to conclude that the expenditure submitted by the applicant in respect of export refunds for animal feed for the financial year 1988 was incurred in accordance with the requirements of Community law. It follows that the Commission was correct in making the disallowance.

22. The Greek Government further argues that in so far as it disallows the contested amount the decision of the Commission is invalid for lack of sufficient reasoning and for infringing the "rights of the defence", i.e. the rights of the Government adequately to present its case. It is clear, however, from the documentation presented to the Court that the Commission explained the grounds for disallowance and that the applicant was closely involved in the proceedings leading to the adoption of the summary report and the decision on the clearance of the accounts. This becomes clear, inter alia, from a letter of 3 April 1990 and a telex of 16 June 1990 sent by the Commission to the Greek Government. In addition, given that the dispute surrounding the financial links between the Greek State and KYDEP has been pending for some years and has been the subject of repeated decisions of the Court, the argument that the rights of the defence have not been respected cannot be accepted.

23. Finally, the Greek Government claims that the Commission initially notified the disallowed sum as DR 8 200 000 but subsequently it increased it to DR 869 296 279 without explanation. It is clear, however, from the documents before the Court that the amount of DR 8 200 000 was an error which appeared only in the Greek version of the letter sent from the Commission to the Greek Government on 3 April 1990. The correct sum was notified to Greece by telex of 16 June 1990. In addition, a copy of the corrected Greek version of the letter was sent by the Commission on 3 August 1990. This argument, therefore, must also fail.

24. I conclude that the applicant' s claim in relation to the disallowance of exports refunds for animal feed should be rejected.

(d) Co-responsibility levy on cereals

25. The applicant also seeks the annulment of the contested decision in so far as it disallowed a sum of DR 215 156 000 in respect of the co-responsibility levy on cereals. Initially, this claim of the applicant incorporated three headings concerning respectively delays in the collection of the levy, amendments to the statistical data provided by Greece to Eurostat and the contention that the contested decision would lead to unjust enrichment of the Community. During the proceedings, the Commission agreed to make a correction in the clearance of the accounts for 1989 to take account of the first claim and the parties agreed to examine the third claim in the clearance of the accounts for 1990. The parties, therefore, are in dispute only in relation to the statistical data provided by Greece to Eurostat.

26. The method used by the Commission to check the collection of the co-responsibility levy by Member States was considered by the Court in Case C-385/89 Greece v Commission [1992] ECR I-3225. The method is essentially based on statistical data supplied by Member States to Eurostat. The Commission based the contested disallowance on the data published by Eurostat on 6 December 1989. It refused to take into consideration revised data submitted by Greece on 6 February 1990. The applicant argues that the first data were merely provisional whereas those subsequently communicated were final. It claims that the distinction between provisional and final data is widely accepted and that it is reasonable that differences may exist between the two sets of data. The applicant concludes that the refusal of the Commission to accept the second set of data was unlawful.

27. It will be recalled that a similar argument was presented by the applicant in Case C-385/89 in relation to the refusal of the Commission to take into account corrected data supplied to Eurostat in relation to the clearance of the accounts for 1987. The Court stated at paragraph 14 of the judgment:

"A cet égard , il convient de relever que, dans un cas comme celui de l' espèce, où des autorités nationales modifient, a posteriori et de manière substantielle, des données chiffrées revêtant une importance décisive aux fins du calcul du prélèvement de coresponsabilité, il leur appartient de fournir suffisamment d' informations concrètes susceptibles de justifier un tel changement."

In the present case, it is not disputed that the first set of data was submitted more than a year after the harvesting of the quantities of cereals to which it related. From the documents submitted to the Court it does not appear that when it provided the data the Greek Government informed the Commission that they were provisional. In my view, therefore, the Commission was entitled to consider them as final. The applicant has submitted no evidence to prove what prompted the corrections or to establish that the new set of data is more reliable. It may therefore be concluded that the Commission was entitled to refuse to take into account the new data.

28. In addition, it is difficult to see how the new data could assist the applicant. The Commission has produced figures which, on the basis of the new data, would lead to an increase of 21 000 tonnes in the amount of cereals in relation to which co-responsibility levy should have been collected. Although the applicant appears to dispute that figure, it has not been able to show that, even on its own calculations, there was no increase in the amount in question. The applicant has therefore failed to show how the new data submitted would lead to a reduction of the sum disallowed.

29. I conclude that the challenge to the Commission' s decision in respect of the co-responsibility levy on cereals should fail.

(e) Forfeiture of security lodged on the sale of meat

30. The applicant seeks the annulment of the contested decision in so far as it disallowed the sum of DR 245 233 in respect of an error in the calculation of the security payable by "Thraki AE", a Greek company, on the sale of meat from intervention.

31. Commission Regulation (EEC) No 2182/77 lays down detailed rules for the sale of frozen beef from intervention stocks for processing in the Community (OJ 1977 L 251, p. 60). Article 4 provides that before a contract of sale is concluded a security calculated to guarantee that the products will be processed must be lodged by the prospective purchaser. It appears from the submissions of the parties that the Greek authorities notified Thraki AE, a purchaser of intervention beef which had failed to complete the processing of the beef within the specified time-limit, that, as a result of its default, the full amount of its security would be forfeited (DR 868 909). Following a complaint by the company, the Commission sent a letter dated 20 November 1987 to the Greek intervention agency which stated:

"The Commission' s services note that the provisions of Regulation No 2182/87 seem to have been applied correctly by the Greek intervention agency. However, the Commission is of the opinion that the principle of proportionality could be applied in this case. Consequently, subject to confirmation that the primary condition i.e. the processing of the meat has been fulfilled, the penalty may be re-calculated according to the provisions of Article 5(3) of Regulation No 2182/77 as amended by Regulation No 1809/87."

The Greek Government claims that on the basis of this letter the intervention agency reduced the initial forfeiture to DR 623 676. The Commission, however, refused to recognize the difference between the initial forfeiture and the reduced forfeiture as chargeable to the Fund. Greece seeks the annulment of the contested decision in so far as it disallowed that sum. The Commission states that by the combined effect of Commission Regulation (EEC) No 2182/77 and Commission Regulation (EEC) No 2220/85 (OJ 1985 L 205, p. 5), a security may not be released unless two conditions are fulfilled: first, the processing of the meat is completed and, secondly, an inspection is carried out within the prescribed period after the conclusion of the contract of sale. The Commission states that the contracts of sale were concluded on 12 April 1986 but that, as appears from the inspector' s report dated 27 January 1988, the inspection was carried out only on 26 January 1988, long after the expiry of the prescribed period. The Commission concludes that the requirements of Community law were not fulfilled. The Commission also states that at the time that it wrote to the Greek intervention agency it did not have full knowledge of the facts. It claims that the applicant misinterpreted its advice. According to the Commission, the true meaning of its letter was that it would be prepared to accept the release of the security provided that the two conditions had been fulfilled even if the relevant documents reached the Commission after the expiry of the prescribed time-limit.

32. It is not easy in my view to read the Commission' s letter in the way in which the Commission now says that it should have been read. The letter can more readily be understood as authorizing the Greek intervention agency to re-calculate the amount of security, provided only that the meat had in fact been processed. Although the requirements of Community law had not been fully observed, as the Greek Government has not disputed, doubts could well remain about the application of the principle of proportionality. I am therefore inclined to take the view that the Greek Government was justified in reducing the amount of the security payable on the basis of the letter.

33. I conclude that the claim of the applicant in relation to the calculation of the security lodged by Thraki AE should be upheld.

(f) Quality of tobacco held in intervention

34. In the clearance of the accounts for 1987 the Commission refused to recognize as chargeable to the Fund the expenses incurred in relation to burley tobacco and certain quantities of oriental tobaccos held in intervention on the ground that these varieties did not meet the specified quality standards. The Greek Government sought the annulment of the decision on the clearance of the accounts on this issue. By its judgment in Case C-385/89 Greece v Commission, the Court rejected the application. In the clearance of the accounts for 1988, the Commission proceeded to a consequential correction of DR 528 931 426 in relation to the quantities of burley tobacco and oriental tobaccos which were sold in 1988. The applicant seeks the annulment of the contested decision, in so far as it charges to the applicant the amount of the financial correction, on two grounds: first, on the ground that in the course of its inspections preceding the clearance of the accounts for 1987 the Commission exceeded the limits of its discretionary powers; secondly, on the ground that the financial correction is contrary to the principles of legal certainty and legitimate expectations.

35. In relation to the first ground, the Greek Government argues that the sampling techniques followed by the Commission in the course of its inspections preceding the clearance of the accounts for 1987 were inadequate and in breach of internationally accepted standards. In support of this argument the applicant refers to a report of 18 December 1988 drawn up by a representative of the Greek Tobacco Organization present during the Commission' s inspections. The applicant also claims that the analysis of the samples by the laboratory SEITA in Bergerac led to results more favourable than those reached by the examination of the Commission as regards the quality of the tobacco. In reply to these arguments, it is sufficient to point out that in its decision in Case C-385/89 the Court rejected the arguments of the applicant that the inspection methods followed by the Commission were not appropriate. In addition, the Court held that the applicant failed to produce sufficient evidence to prove that the varieties of tobacco in question satisfied the specified quality standards. This argument of the applicant must therefore be rejected.

36. In relation to the second ground, the Greek Government argues that the summary report preceding the clearance of the accounts for 1987 made no reservations in relation to the possibility of a financial correction in the future. The clearance of the accounts was therefore final and the Commission was not entitled to make a correction subsequently, i.e. in the clearance of accounts for 1988.

37. In my view, this argument cannot be accepted. In the clearance of the accounts for 1987 the Commission established that burley tobacco and certain quantities of oriental tobaccos held in intervention did not meet the specified quality standards. As stated, that finding was upheld by the Court in Case C-385/89 Greece v Commission. A necessary consequence of that finding was that in calculating the quantity of tobacco which left the intervention system in 1988, the Commission could not take into account sales of tobacco which did not meet the required standards and should therefore never have been admitted to intervention. The fact that the Commission made no reservation in the clearance of the accounts for 1987 does not affect the legality of the disallowance. The absence of a reservation could only be relevant if the Commission re-examined accounts which had already been cleared. In the present case, the financial correction was brought into the accounts for 1988 in relation to quantities of tobacco sold in that year. It did not have a retrospective character. I cannot see how in the circumstances of this case the conduct of the Commission could give rise to a breach of the principles of legal certainty and legitimate expectations.

38. I conclude therefore that the applicant' s claim in relation to the quality of tobacco held in intervention should be dismissed.

General observations

39. It may be appropriate to stress once again, at this point, the duty of Member States to cooperate with the Commission, in accordance with Article 5 of the Treaty, in ensuring the correct application of Community funds. As I suggested in my Opinion in Case C-32/89 Greece v Commission [1991] ECR I-1321, at paragraphs 52 to 54, the Member States, in exercising their responsibility for ensuring that the Community rules are strictly observed, act essentially as trustees of the Fund and in that capacity have a duty to ensure that the conditions under which expenditure is effected are as transparent as possible.

40. The series of cases concerning the conduct of the Greek authorities, referred to in paragraph 4 above, has arisen in part because of the difficulties which the Commission has had in obtaining the necessary information from those authorities, and the present case has illustrated once again the difficulties resulting from a lack of proper communication. In particular, the operations and activities of KYDEP and its relationship with the Greek State have been far from transparent.

41. It is therefore cause for satisfaction that the Commission was able to state in its rejoinder that Greece had recently accepted that KYDEP should be inspected by the Fund' s inspectors and that it had already been possible to carry out two inspections. Indeed the Commission went so far as to state that a new era was opening in the relations between Greece and the Community as regards the administration of the common agricultural policy and that the change could only be beneficial for all concerned, including the Court, since there was likely to be a substantial decrease in the risk of litigation between the Commission and Greece. At the hearing the Agent of the Greek Government said that he had the impression that this would be the last time that the Court would have to deal with trivial issues of the type raised in this case and expressed the hope that in future such disputes would be resolved by consultations with the Commission.

42. The Court can but welcome these developments.

Conclusion

43. In the present case I have reached the conclusion that the application should be allowed only on one point. Since the application has, in my view, failed under the other heads, the applicant should be ordered to pay the costs.

44. Accordingly I am of the opinion that the Court should:

(1) declare void Commission Decision 90/644/EEC of 30 November 1990 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1988 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund in so far as the Commission has not charged to the Fund the amount of DR 245 233 representing the difference between the amount of the security lodged by Thraki AE on the sale of meat for intervention and the amount of the security forfeited;

(2) for the rest, dismiss the application;

(3) order the Hellenic Republic to pay the costs.

(*) Original language: English.