Opinion of Mr Advocate General Tesauro delivered on 4 July 1989. - Hellenic Republic v Commission of the European Communities. - Financing projects in the context of special aid to Turkey. - Case 30/88.



European Court reports 1989 Page 03711



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . While the action in Case 204/86, brought by the Hellenic Republic

against the Council of the European Communities for the annulment of transfer No 4/86 of appropriations amounting to ECU 10 million from Chapter 100, Item 9631, to Chapter 96, Item 9632, of the general budget for 1986, was still pending before the Court, the Hellenic Republic brought this action on 27 January 1988 . The defendant in these proceedings is the Commission .

2 . In the meantime, on 27 September 1988 the Court gave judgment in that case and dismissed the action against the Council . In view of the fact that the two cases are closely connected, even though the defendant, the causa petendi and the petitum are not the same, I can, for obvious reasons, confine myself to summarizing the facts .

3 . In the first action, the Greek Government sought the annulment of the Council measure which had been used to allocate appropriations to the budget heading concerning special aid for Turkey . That aid was initially approved on 19 September 1980 ( by Decision No 2/80 of the EEC-Turkey Association Council ), whilst its implementation was subsequently suspended as a result of the coup d' état in Turkey and finally resumed by a decision of the Council of the European Communities, notwithstanding the opposition of Greece, on 17 February 1986 .

As we all know, the action in Case 204/86 was dismissed . The Court came to the conclusion that none of the three submissions relied upon by the Greek Government, namely lack of powers of the Council, misuse of powers by the Council and breach by the Community of an obligation under international law, was well founded .

4 . In these proceedings, Greece has contested the three Commission decisions of 17 November and 10 December 1987 approving specific projects financed by the special aid for Turkey . This action had to be brought before judgment was given in the first case ( 204/86 ) in order to comply with the time-limit set by the first paragraph of Article 173 of the Treaty .

In support of its action for the annulment of the three decisions relating to the EEC-Turkey business week project, the anti-malaria programme in the eastern Mediterranean coastal region of Turkey and the project for the exploitation of geothermal energy in western Anatolia, the Greek Government relies on the following submissions :

( i ) infringement of Community law;

( ii ) infringement of essential procedural requirements;

( iii ) abuse of procedure;

( iv ) the Commission' s lack of powers in adopting the contested measure .

5 . Having given a brief outline of the background to the case, I now turn to the arguments put forward by the Greek Government, although I shall not deal with them in the same order; for further details I would refer to the Report for the Hearing .

6 . The first argument, which on closer inspection does not concern the conduct of the Commission itself, relates to the alleged infringement by the Council of Article 2 of Intergovernmental Agreement No 64/737/EEC ( Journal officiel L 217, 29.12.1964 ) on the measures to be adopted and the procedures to be followed for the application of the Association Agreement between the Community and Turkey . According to the Greek Government, that Agreement has been infringed inasmuch as, contrary to Articles 7 and 22 thereof, the Council of the European Communities did not give its unanimous assent to the implementation of the decision of the EEC-Turkey Association Council, with the result that the subsequent implementation of budget expenditure on an item vitiated by illegality is in its turn null and void . In substance, the Greek Government maintains that the Council of the European Communities should have transposed into Community law by means of a specific act the measure adopted by the EEC-Turkey Association Council .

That argument, which is connected not with the implementing stage but with the stage preceding it, is in fact concerned with the conduct of the Council and only to a negligible extent ( following consultation ) with that of the Commission . It is not surprising, therefore, that Greece had already relied upon it in its first action . Conversely, it is surprising that the Council' s allegedly unlawful conduct - non-implementation - was not relied upon by the Greek Government at the time when the first specific projects were approved in 1981 ( see paragraph 16 infra ).

7 . In its aforesaid judgment the Court did not expressly state its views on that point . In that regard, however, there is in my view a serious flaw in the reasoning of those who, relying on the premise that if the Court had considered the argument valid it would have accepted it at the time, now contend that the argument itself is invalid .

The validity of the argument must, in my view, be considered in the light of criteria other than mere silence or a mere omission on the part of the Court .

8 . In that regard, I find in the first place that in the Opinion of Mr Advocate General Mancini in Case 204/86 the problem is tackled and resolved in a manner unfavourable to the Greek Government' s argument ( p . 29 of the roneod version of the Italian text ). In the view of my predecessor, the Council' s argument is correct, in the sense that "if read attentively, Article 2(1 ) of Agreement No 64/737/EEC requires the transposition into Community law only of decisions which could not otherwise be applied ".

9 . In these proceedings the Court has asked the Council and the Commission to specify the criteria which they applied for the purpose of interpreting the contested provision in order to decide whether in certain cases it was necessary to adopt a formal act transposing the measure in question into Community law .

The answer given by the Council and endorsed by the Commission is, in my view, exhaustive and persuasive . Although it is true that the Council has never expressly determined the criteria to be applied for the purpose of interpreting the provision under consideration, the practice which it has followed and which consists in adopting Community measures for the application of decisions of the Association' s governing bodies only where such measures are legally warranted, is justified in my view . Admittedly, the provision in question is not absolutely clear and could also be interpreted in the manner suggested by the Greek Government . However, every provision must be interpreted in the context of the system to which it belongs and, in that light, I do not see any reason, still less any need, for swelling to no purpose the Community' s already abundant body of legislation by requiring any and every measure adopted by the Association' s governing bodies to be formally transposed, even where its internal effect in Community law is inherent in the measure itself or is achieved by other means .

10 . In this case, as regards the financial aspect of the contested special aid, it is clear that its application at the internal level was properly effected under the budget procedure as a result of the transfer of an appropriation to Item 9632 .

11 . In conclusion, I do not believe that the first submission relied upon by the Greek Government can be accepted .

12 . I now come to the applicant' s complaints concerning the Commission' s conduct in connection with the procedure for the adoption of the three contested decisions .

In that regard, although it has advanced three separate submissions ( infringement of essential procedural requirements, abuse of procedure and the Commission' s lack of powers ), the Greek Government alleges in substance that the Commission followed an unlawful procedure with regard to the approval of the three projects, in order to obviate the possible opposition of "certain Member States" ( p . 7 of the application ). Even more explicitly, Greece implies that the Commission deliberately set up an artificial legal structure ( also ) for the purpose of replacing the unanimity rule, which Greece maintains is applicable, with the qualified majority rule, or even arrogated to itself the power to take decisions without consulting the Member States .

That is the background, the political implications of which are self-evident, to the legal discussion which raises, amongst other things, the complex problem of distinguishing between the Commission' s implementing powers under Article 145 of the EEC Treaty and its powers to implement the budget under Article 205 .

13 . As I stated earlier, I do not intend to deal with the submissions relied upon by the Greek Government in the same order as that in which they were raised; instead, I intend to make an overall appraisal of the criticism directed at the Commission .

14 . Let me say at once without equivocation that, in my view, the Greek Government' s legal argument is persuasive, whilst the Commission' s position is open to criticism . That is so particularly since, in order to justify a standpoint which is frankly indefensible because it fails to respect a Member State' s fundamental right to the observance of those procedural rules which it had previously accepted, and not other rules, the Commission has formulated a nebulous theory which, whilst purportedly reflecting a change in the law, cannot even dispose of the Greek Government' s supposition that the real aim pursued was to avoid the risk of opposition by a government under procedural rules stipulated by agreement . Whatever the merits may be, from the point of view of the general policy pursued in relations with Turkey, of the aims inherent in the Commission' s conduct, the Court' s task is to safeguard the principles of a Community governed by the rule of law, in which, in particular, rules previously laid down and ascertained must be complied with and may not be amended unilaterally by one of the parties .

That was precisely what happened in this case .

15 . For that to become evident, it is sufficient to ascertain and to take into consideration the intention of the Council as expressed in two chronologically distinct periods, an intention which manifestly and unequivocally runs counter to the interpretation followed by the Commission .

16 . The first period falls in 1980 . In that year, Greece had not yet joined the Community . However, in accordance with the usual practice of consulting and informing States which have signed an accession agreement that has not yet entered into force, Greece was kept informed of decisions which had been adopted by the Community institutions after the signature of the Act of Accession and which were to form an integral part of the "acquis communautaire ". It is significant that the Greek Government, as was also confirmed at the hearing, had not at the time raised any objections to the "financial aspect" and had instead sought clarification on the agricultural and social aspects of the decisions being drawn up .

Paragraph 2 of Decision No 2/80 of the Association Council specified that, in appraising specific projects, the Commission would abide by the criteria laid down by the "Community delegation ". Those criteria were indicated by the Council of the European Communities in a declaration of 30 June 1980 "concerning the internal implementation of Decision No 2/80" which referred, as regards the procedure for the approval of projects, to "the procedure followed for the implementation of the financial protocols concluded with the Mediterranean countries ". That Council declaration was therefore binding on the Commission, requiring it to comply with a specific pre-existing procedure introduced in 1978 by the members of the Council whose powers were based inter alia on Article 2 of the aforesaid Intergovernmental Agreement of 29 December 1964 . That was clearly the ad hoc procedure, which was characterized by the fact that only the projects forwarded by the Commission and the EIB and unanimously passed by the ad hoc working party established within the Council were accepted . It is also interesting to note in that regard that some of the first specific projects carried out by Turkey and financed by means of the special aid - before relations between the EEC and Turkey were frozen - had been approved in 1981 under the ad hoc procedure and therefore unanimously ( which means with the assent of Greece ).

It is clear from that historical survey that when Greece agreed to the financial side of the aid to Turkey it was aware that the Council would have applied the unanimity rule with regard to its actual implementation . It is equally clear that once it had joined the Community Greece made no attempt, until relations with Turkey were frozen, to veto the implementation of the financial aid . That is not in itself significant but serves to complete the picture and to cast doubt even on the political necessity for the Commission' s conduct .

17 . Secondly, it is indisputable, and it has been expressly stated, that at the time when the ad hoc procedure was replaced by a new procedure in relation to the financial protocols concluded with the Mediterranean countries, ( 1 ) characterized by the introduction of a qualified majority vote in the Article 6 Committee established within the Commission, financial cooperation with Turkey was excluded from the scope of that new system . That is expressly acknowledged by the Commission . Moreover, it is difficult to see how the Commission could deny it, in view of the wording of the declaration made in the Minutes of the 1 023rd Council meeting on 22 and 23 July 1985 when the regulation in question was formally adopted :

"The Council and the Commission ( emphasis added ) state that this regulation may in no way be regarded as a precedent for implementing financial protocols other than those covered by this regulation .

The procedure for implementing such other protocols will be adopted later in accordance with the merits of each particular case ."

18 . If we examine the consequences of that statement, it seems to me to contain two incontrovertible factors :

( 1 ) the new procedure ( qualified majority ) is not applicable to financial cooperation with Turkey;

( 2)the Council ( and the Commission ) have acknowledged that the procedure applicable to the other protocols ( i.e . Turkey ) would be decided in due course .

As for the case of Turkey, notwithstanding the Commission' s assertion to the contrary and in view of the fact that :

( a ) the previous procedure was applicable to Turkey,

( b ) the "new" procedure is not applicable to that country,

( c)the Council and the Commission have stated that the procedures applicable to cases other than those covered by the new regulation would be laid down in the future,

it seems quite clear to me that the previous procedure remains applicable to Turkey as long as the Council has not decided otherwise .

19 . That conclusion makes it superfluous to engage in any dialectics as to the permissibility of applying by way of analogy a procedure expressly provided for by the protocols on financial cooperation with certain Mediterranean countries other than Turkey to Turkey itself . To do so would be inappropriate because in this case the application of the procedure by way of analogy is a false problem . Here in fact the precondition for resorting to a procedure by way of analogy, that is to say the existence of a "lacuna", is missing . In that regard reference may be made to the extremely lucid observations of Karl Engisch ( Introduzione al pensiero giuridico, Italian Edition, Giuffrè Editore, 1970, p . 134 ): "in order to reach a legally tenable conclusion by way of analogy it is necessary to show that a detail in respect of which there are no legal rules exhibits in common with a detail for which rules exist those features on which legal rules are based ". In this case there is no "lacuna" since exhaustive rules have been adopted by the legislature .

20 . That conclusion cannot, it seems to me, seriously be challenged on the ground that the 1979 ad hoc procedure is of a "provisional" nature . One factor alone strikes me as decisive in that regard : it is not for the Commission to decide whether a procedure adopted by the Council has either maintained or lost its effectiveness . So long as the body which enacted the contested measure, or the Court of Justice, has not expressly rendered it invalid, the measure continues to take effect . With regard to the Mediterranean countries expressly referred to in Regulation No 3973/86, it was the clear intention of the Council to discontinue the application of the ad hoc procedure to them . As for Turkey, the Council' s intention was undoubtedly not to apply the new procedure to it . Since no decision was taken to discontinue the application of the ad hoc procedure in relation to the special aid for Turkey, it continues to take effect in that regard . This means that the procedural basis of the three contested decisions, which was formally and expressly identified by the Commission with the application by way of analogy of the Article 6 Committee procedure under Regulation No 3973/86, is unlawful .

21 . That approach makes it superfluous to carry out the other investigation, with its ill-defined scope and uncertain result, which consists in ascertaining whether the aforesaid declaration entered in the Minutes of the Council meeting of 30 June 1980 at the time of the Association Council' s adoption of Decision No 2/80 contains a reference "substantively" or "formally" incorporating the ad hoc procedure . To decide now, in 1989, whether at the time the nine Member States of the Community intended to refer to a procedure frozen in time or, instead, to incorporate any amendments made to it, is, in my view, a task which is beyond the scope of the interpreting court . It is far more appropriate to take account of the intentions of the 10 Member States - therefore including Greece - at the time of the adoption of the new procedures . In that respect there is no scope for any possible inference or alternative . The Council' s intention was clearly to exclude the applicability of those procedures to financial cooperation projects relating to Turkey .

22 . Nor can greater weight be attached to the Commission' s further argument in which, in order to overcome the fact that the intention of the Council ( and, it should be noted, of the Commission itself ) could not have been clearer, the Commission points out that it did not so much ( and in any event not formally ) resort to the "new" Article 6 Committee procedure as merely ... consult its members and take advantage of their experience in dealing with Mediterranean development projects .

23 . Even without resorting to the highest principles ( of a Community governed by the rule of law ), it does not seem to me that such a casual approach can reasonably be accepted, let alone endorsed by the Court, particularly if the importance is considered - in political terms as well - of the transition from the unanimity criterion, which alone had been accepted by Greece, to the majority criterion, whose applicability to aid for Turkey had been ruled out by all the Member States and the Commission . So conscious were the Council and the Commission of this consideration that not only was the application of the new procedure excluded in relation to the implementation of "financial protocols other than those covered by this regulation", but even the possibility of a new procedure being "regarded as a precedent" was ruled out, which amounts to much more than a mere declaration of inapplicability and which renders totally superfluous any comment on the use of the members of the committee provided for by the new procedure as ... experts .

It is quite sufficient to point out that, if the Commission had resorted to the 1979 ad hoc procedure, it would also have benefited from the experience of government experts, made a political gesture towards the Member States and, what is more, applied the rules in force correctly, instead of exposing itself and the Community to the risk of the Court annulling decisions vitiated by a defect as serious as that of recourse - whether as a matter of fact or as a matter of form - to a voting procedure which was improper and was in fact expressly stated to be inapplicable by the institution which adopted it . In addition, the Commission was well aware of the existence of serious doubts as to the correctness of the procedure which it intended ( at the time ) to apply . It follows from the opinion set out in Document No 8006/87 of 29 July 1987 of the General Secretariat of the Council, submitted by the Greek Government, that when the matter came before the Committee of Permanent Representatives the Council' s Legal Department had already taken the view that the interpretation based on the intention of the parties entailed in this case the application of the ad hoc procedure .

24 . This brings me to the conclusion that the arguments put forward by the Greek Government must be accepted . As we have seen, the Commission approved the three specific projects on completion of an unlawful procedure which was vitiated by failure to resort to the 1979 ad hoc procedure .

25 . The last remaining obstacle is the Commission' s argument to the effect that any discussion concerning the legality of the procedure followed for the approval of the three specific projects is superfluous for the simple reason that, since they relate to the implementation of the budget within the meaning of Article 205 of the Treaty, the Commission' s powers are exclusive; consequently, even if all other factors are taken into account, the Commission itself was in any event entitled to refrain from applying procedures imposing conditions on the exercise of those powers . That argument lies at the heart of a continuing debate, at times conducted in undertones, on the powers to implement the budget and, in particular, on the relationship between Articles 145 and 205 of the EEC Treaty, and therefore on the respective powers of the Council and the Commission with regard to the adoption of decisions, in whatever form, involving expenditure chargeable to an item already included in the budget ( in this case, the amounts in respect of individual projects were chargeable to Item 9632 - special aid for Turkey - forming the subject-matter of the appropriation transfer referred to at the outset ).

26 . On closer inspection, however, there are procedural reasons which prevent the Court from tackling such a stimulating and important problem here . To begin with, the three contested decisions contain no reference to Article 205 of the Treaty . On the contrary, reference was expressly made, albeit in the aforesaid context of its application by way of analogy, to the procedure referred to in Regulation No 3973/86 which, in any event, involved approval by a body external to the Commission . Secondly, as if to confirm that, the measures which foreshadow the procedures forming the subject-matter of this dispute, namely the 1979 ad hoc procedure and the procedure introduced by Regulation No 3973/86, would not appear to have been contested by the Commission in the prescribed manner . It is impossible, in particular, for the Commission' s argument to be reconstructed by the Court as an objection of illegality for the purposes of Article 184 in conjunction with either Regulation No 3973/86 or Decision No 2/80 of the Association Council . As regards the ad hoc procedure in particular, its continuation in force is disputed even after the adoption of Regulation No 3973/86, but not its legality in the light of Article 205 .

27 . The procedural position in this case therefore differs from that in Case 16/88, in which the Commission turned a similar, albeit broader standpoint into a formal objection ( directly based on Article 173 of the Treaty ) contesting the legality of a provision of Regulation No 3252/87 . In this case, on the other hand, any assessment of the question whether the approval of the three aid projects for Turkey fell exclusively within the Commission' s powers under Article 205 of the Treaty is indeed superfluous given that, in any event, the legality of the two procedures at issue in the light of Article 205 has not been challenged in the prescribed manner . Utlimately, the principle of the legality of Community measures, frequently relied upon by the Commission in response to allegations of illegality made by individuals and the Member States but not resulting in proceedings under Article 173 or objections under Article 184, precludes the Court from adjudicating on that point . The Court has consistently held that, according to the principle of legality, measures must be deemed to be fully effective until they have been declared unlawful ( see, most recently, the judgment of 7 June 1988 in Case 63/87 Commission v Greece (( 1988 )) ECR 2875 ).

28 . I shall express my opinion on that point, albeit only in the brief form permitted by the circumstances, in the unlikely event that the Court should decide that it is not so precluded . Generally speaking, I consider that the exclusive nature of the powers conferred on the Commission to implement the budget is not in abstract terms incompatible with certain rules and/or procedures for the approval of decisions involving expenditure that may already be covered by a broader item in the budget, all the more so in the form relevant to this case, that is to say a Council measure which, even before entering an overall item of expenditure ( i.e . special aid for Turkey ) in the budget, makes the procedure for the approval of individual projects ( and therefore the grant of individual benefits ) conditional on the assent of a body external to the Commission . In other words, it is a stage preceding the implementation stage, and in fact still forms part of the decision-making stage or, according to the circumstances, the legislative stage, which must not be confused either in conceptual or in legal terms with the stage at which the budget is implemented . Arguably, Article 145 of the Treaty ( and Article 155 before it ), as embodied in the Single European Act, is also set in that context, although it does not reflect all the implications and ramifications thereof . Articles 145 and 205 co-exist harmoniously within the system established by the Treaty and with the division of powers between the Council and the Commission, a division which clearly distinguishes a decision-making process that gives rise to expenditure, whether or not such expenditure is included in a broader item already entered in the budget, from one that leads subsequently, from the commitment of expenditure until actual entry in the accounts, to the "implementation" of the decision in terms of expenditure . There may well be times when the two institutions confuse or, why pass over it in silence, "encroach" upon each other' s roles with the result that they, and the Parliament, need to show constant vigilance . However, the possibility that a confusion of roles may have occurred in this case is absolutely out of the question, as evidenced by the attitude of the Commission itself, which has never contested the measures under consideration in the prescribed manner, either at the time of their adoption ( 1979 and 1986 ) or in these proceedings before the Court .

29 . In my view, that conclusion applies with particular force in a case such as this, in which the Council, without prejudice to the powers of the European Parliament as amended by the Single Act, has exclusive power to conclude an association agreement .

The Commission' s argument would lead, in circumstances such as those at issue, to the consequence that measures which in themselves fall within the exclusive powers of the Council ( conclusion and implementation of association agreements ) would, as from the time when an item of expenditure relating thereto is entered in the budget, fall within the exclusive power to implement the budget conferred on the Commission by Article 205 .

In my view, such a shift in powers, ranging from the outer limit of the Council' s exclusive powers ( which may be exercised even without a Commission proposal being required ) to the outer limit of the Commission' s exclusive powers relating to the budget ( which may be exercised without any possibility of interference by the Council ), is neither justified nor desirable . Instead, I believe, as I pointed out earlier, that it is necessary to strike a middle course which seeks to reconcile, where necessary, the exclusive nature of the Commission' s powers to implement the budget with recognition of the Council' s decision-making power, at any rate in areas in which the Council is exclusively competent .

That middle course has been found, correctly in my view, in Regulation No 3973/86 with regard to financial aid to the Mediterranean countries expressly referred to therein ( procedure under Article 8 ). As for the specific case of Turkey, however, that regulation is not applicable for the reasons referred to earlier and only the ad hoc procedure which, although governed by different rules, conforms to the same rationale, constitutes the correct legal basis .

30 . Ultimately, the position of the Commission, which, I repeat, has not challenged the legality of either of the two Council measures, is very weak in my view . In the first place, it consists, in the final analysis, in denying the legality of the procedure provided for in Article 8 of Regulation No 3973/86, in whose adoption the Commission was involved . Secondly, the Member States had already adopted a position on the procedure to be followed : at a meeting of the Committee on Association Agreements with Third Countries and Turkey on 17 July 1987, to which Council Document No 8006/87 refers, several delegations had expressly pointed out that they "would be unable to agree that in the absence of a solution within the Council regarding the procedure to be applied for the approval of the projects in question the Commission should proceed to carry out those projects in the exercise of its powers to implement the budget under Article 205 of the Treaty" ( emphasis added ).

31 . In conclusion, therefore, I propose that the Court allow the application of the Hellenic Republic and order the Commission to pay the costs .

(*) Original language : Italian .

( 1 ) Council Regulation ( EEC ) No 3973/86 of 22 December 1986 concerning the application of the protocols on financial and technical cooperation concluded between the Community and Algeria, Morocco, Tunisia, Egypt, Lebanon, Jordan, Syria, Malta and Cyprus ( OJ 1986, L 370, p . 5 ).