Opinion of Mr Advocate General Van Gerven delivered on 23 January 1990. - Hellenic Republic and Crete Citron Producers' Association v Commission of the European Communities. - Economic policy Balance of payments - Protective measures. - Joined cases C-111/88, C-112/88 and C-20/89.



European Court reports 1990 Page I-01559

Pub.RJ Page Pub somm



Opinion of the Advocate-General

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1 . In his Opinion the Advocate General first examined the admissibility of the actions brought in Cases C-112/88 and C-20/89 by the Crete Citron Producers' Association against Decisions 88/438/EEC ( 1 ) and 88/600/EEC, ( 2 ) which were addressed to the Greek Government . The Advocate General argued that, for the actions brought by the Association to be admissible, the latter had to belong, at the time when the decisions were taken, to a group of persons whose number and identity were fixed or ascertainable, so that the Commission was in a position to know that its decision affected the interests and the legal position of those persons alone . ( 3 )

The Association clearly did not satisfy that condition . The decisions were intended to put an end to all export aid in the candied fruit peel sector with effect from 4 February 1988, irrespective of the undertakings exporting candied fruit peel which were in receipt of such aid or which might receive it subsequently . It was therefore not a case of a "closed" group of persons who could be individually distinguished once and for all at the time of the decisions, but rather of an "open" group of persons defined on the basis of their objective capacity as market participants in a particular sector . The mere fact that they all exported candied fruit peel was not sufficient to establish that they were individually concerned by the contested decisions . ( 4 )

The Advocate General further argued that such a conclusion would hold good even if the contested decision concerned only a single undertaking ( the Association claimed that it was the only Greek exporter of candied fruit peel ); a decision did not cease to be general in nature because it was possible to determine the number or even the identity of the persons to whom it applied at any given time, so long as it was established that that application took effect by virtue of an objective legal or factual situation defined by the measure in relation to its purpose . ( 5 )

2 . Turning to the question whether the conditions for the application of Decision 86/614 had been met, the Advocate General made in particular the following observations :

"It should be apparent from the foregoing that I think that the Commission was entitled to consider that the conditions governing the application of Article 3 of Decision 86/614/EEC were fulfilled in so far as for the application of the first two conditions it is sufficient that there should be a threat of major changes in trade flows and a threat of serious injury . To be sure, the evidence on which the Commission based itself is, albeit sufficient, rather scanty, which is partly due to lack of cooperation on the part of the Greek Government . I should also state that the evidence adduced by the Greek Government to the contrary is not very concrete and not such as to detract from the reasonableness of the Commission decision .

It must also be borne in mind that the legal basis of the contested decision is to be found in Decision 86/614 and, indirectly, in Article 108(3 ) of the Treaty . That provision of the Treaty confers a not inconsiderable discretion on the Commission as regards both the principle and the conditions and manner of implementation of aid measures permitted in the particular case, which in themselves are incompatible with Articles 92 to 94 of the Treaty and therefore must remain very exceptional . The need for such discretion is all the greater where it is a question of assessing the various sectors of a national economy on the basis of Article 3 of Decision 86/614 . The Commission is then faced with the difficulty of collecting detailed data for each of those sectors separately ( 6 ) and with the desirability of acting swiftly in certain cases .

On the basis, inter alia, of that consideration I take the view that the Commission was entitled to consider that the conditions governing the application of Article 3 were fulfilled ."

3 . With regard to the question whether the Commission had failed to respect the procedural rights of the applicants, the Advocate General stated that :

"The requirement of 'consultation with the interested parties' set out in Article 3 of Decision 86/614 is an application of the more general principle of the right to be heard, which means that the Commission is obliged to inform the Member State concerned about any complaint received and about the factual circumstances cited in the complaint which might culminate in a decision adversely affecting that Member State . In accordance with that principle the Commission must afford the 'interested parties' the opportunity to make known their views on the accuracy and relevance of the facts and circumstances alleged and on the documents on which the Commission has based ( 7 ) or proposes to base its decision . ( 8 ) However, that does not entail the settlement of a dispute between the State taking protective measures and the undertaking complaining about the effects of those measures; in other words, the Commission does not have to weigh the various points of view against each other but must use the information obtained during consultation with the interested parties in order to take its decision on the presence or absence of the conditions governing the application of Article 3 with full knowledge of the facts ."

4 . The Advocate General concluded by proposing that the Court should declare :

( 1 ) the application in Case C-111/89 admissible but unfounded and order the Hellenic Republic to pay the costs, including those in connection with the application for interim measures;

( 2 ) the application in Case C-112/88 inadmissible ( in the alternative, unfounded ) and order the applicant to pay the costs, including those in connection with the application for interim measures;

( 3 ) the application in Case C-20/89 inadmissible ( in the alternative, unfounded ) and order the applicant to pay the costs .

(*) Original language : Dutch .

( 1 ) OJ 1988, L 218, p . 19 .

( 2 ) OJ 1988, L 325, p . 58 .

( 3 ) See the judgment of 1 July 1965 in Joined Cases 106 and 107/63 Toepfer v Commission (( 1965 )) ECR 405, and of 18 November 1975 in Case 100/74 CAM v Commission (( 1975 )) ECR 1393 .

( 4 ) See the judgment of 17 January 1985 in Case 11/82 Piraiki-Patraiki v Commission (( 1985 )) ECR 227, paragraph 14 .

( 5 ) See the judgment of 14 July 1983 in Case 231/82 Spijker Kwasten v Commission (( 1983 )) ECR 2559, paragraph 10, and of 6 October 1982 in Case 307/81 Alusuisse v Council and Commission (( 1982 )) ECR 3463 .

( 6 ) Thus it appears from the order of 6 May 1988 of the President of the Court concerning an application for interim measures in Case 111/88 R that the exportation of citrus fruit accounts for only 0.0245% of the total value of Greek exports ( see paragraphs 17 and 18 of the order ).

( 7 ) See the judgment of 10 July 1986 in Case 234/84 Belgium v Commission (( 1986 )) ECR 2263, paragraph 27 .

( 8 ) See the judgment of 11 November 1987 in Case 259/85 France v Commission (( 1987 )) ECR 4393, paragraph 12 .