Opinion of Mr Advocate General Mischo delivered on 23 May 1990. - Commission of the European Communities v Hellenic Republic. - Failure to fulfil an obligation - Agriculture - Market in feed grain. - Case C-35/88.



European Court reports 1990 Page I-03125



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . The action brought by the Commission against the Hellenic Republic, with which this Opinion will deal, seeks a declaration by the Court that, by intervening on the market in feed grain, and in particular by giving instructions to the Central Office for the Management of National Products ( hereinafter referred to as "Kydep ") regarding the purchase and sale of feed grain at prices and on conditions determined by the Greek Government, by covering from State resources the deficit arising from those transactions and by facilitating preferential financing by the Agricultural Bank of Greece of Kydep' s operations on the market in feed grain, the Hellenic Republic has failed to fulfil its obligations under Regulation ( EEC ) No 2727/75 of the Council of 29 October 1975 on the common organization of the market in cereals ( 1 ) and the regulations giving effect to it, and also under Articles 5 and 93 of the EEC Treaty .

Admissibility

2 . The Hellenic Republic pleads that the application is inadmissible, on the ground that its main purpose is to obtain a declaration that the Greek authorities have been granting to stock breeders in Greece a State aid incompatible with the common market . According to the defendant the Commission should in those circumstances have implemented the entire procedure under Article 93(2 ) rather than bringing an action on the basis of Article 169 of the Treaty . The Hellenic Republic relies in particular on the judgment in Case 290/83 Commission v France [1985] ECR 439, in which the Court held that :

"The procedure laid down in Article 93(2 ) provides all the parties concerned with guarantees which are specifically adapted to the special problems created by State aid with regard to competition in the common market and which go much further than those provided in the preliminary procedure laid down in Article 169 of the Treaty in which only the Commission and the Member State concerned participate ."

3 . The Commission complains that the Greek Government failed to raise the preliminary objection of inadmissibility in the course of the pre-litigation procedure . However, that observation - although correct - seems immaterial, since the question of the admissibility of an application must be appraised by reference to the action itself, and that action does not come into being until the application has been lodged .

4 . Having said that, however, I do not propose that the Court should declare the Commission' s application to be inadmissible . Contrary to the assertions of the Hellenic Republic, the main purpose of the application is to obtain a declaration that the Hellenic Republic has infringed the provisions of Regulation No 2727/75 on the common organization of the market in cereals by intervening, through Kydep, on that market in a manner not envisaged by the regulation . That infringement, if such it is, can be established only in the context of the procedure provided by Article 169 and is independent of the question whether or not the Hellenic Republic absorbed any deficits arising from the intervention in question .

5 . Conversely, if the main head of complaint is justified - that is to say, if the Greek authorities were not entitled to order Kydep to purchase and sell feed grain at prices and on terms laid down by Kydep itself - it follows a fortiori that they were not entitled to charge to the State budget the deficits arising from those operations . The second head of complaint is therefore ancillary to the first . In that case, there is no need to have recourse to Article 92 in order to show that the complaint is well founded .

6 . It should also be noted that the Court, in its abovementioned judgment of 30 January 1985, further held as follows :

"Accordingly, although the existence of that specific procedure in no way prevents the compatibility of an aid scheme in relation to Community rules other than those contained in Article 92 from being assessed under the procedure provided for in Article 169, the Commission must ... use the procedure laid down in Article 93(2 ) if it wishes to establish that that scheme, as aid, is incompatible with the common market ."

7 . It is clear from that extract that, wherever the Commission bases its action on a provision other than Article 92, it may avail itself of Article 169 . That is precisely the case here, since, apart from the separate complaint regarding the failure to notify financial measures under Article 93(3 ) and the alleged infringement of Article 5 of the Treaty, the action brought by the Commission seeks a declaration that the defendant has infringed the provisions of Regulation ( EEC ) No 2727/75 . In the conclusions in the Commission' s application, Article 92 of the Treaty is not mentioned .

8 . The circumstances of the present case are therefore very similar to those under consideration in the judgment in Case 72/79 Commission v Italy [1980] ECR 1411, in which the Court held that :

"The Council is entitled to lay down, within the context of the regulations establishing the common organization of the markets in agricultural products, provisions prohibiting wholly or partially certain forms of national aids for the production or marketing of the products in question and that an infringement of such a prohibition may be dealt with within the specific framework of such an organization . In fact the existence of the special procedure laid down in Article 93 of the Treaty for appraising the compatibility of national systems of aid with the common market cannot affect the necessity for Member States to observe the rules on the common organization of the market ."

9 . Admittedly, Article 22 of Regulation No 2727/75 states that, save as otherwise provided therein, Articles 92 to 94 of the Treaty must apply to the production of and trade in the products covered by the common organization of the market in cereals; however, the Commission does not rely on that reference in this case . Furthermore, although the Commission cites Article 93, it does so only in so far as Article 93(3 ) requires Member States to inform the Commission of any plans to grant or alter aid ( see p . 3 of the application ). Moreover, the guarantees afforded by the special procedure created by Article 93(2 ) come into operation only when the substance of the aid is at issue rather than the purely procedural obligation to notify it . All interested parties, whoever they may be, must have the opportunity of expressing their views on the substance, whereas the procedural obligation cannot in any circumstances be affected by the observations they may make .

10 . Lastly, I find equally unacceptable the defendant' s argument that the essential purpose of the action is, in the last analysis, to obtain a declaration that Articles 92 and 93 of the Treaty have been infringed, since none of the breaches of Regulation No 2727/75 alleged by the Commission has been substantiated . Once again, this is a substantive argument which can have no bearing on the admissibility of the application .

11 . My conclusion, therefore, is that the Commission was fully entitled to use the procedure under Article 169 and that its application is admissible .

Substance

12 . I propose to consider in turn the five complaints made by the Commission, namely that the Greek authorities :

( i ) intervened on the market in feed grain, in particular by instructing Kydep to buy and sell feed grain at prices and on terms laid down by the Greek Government;

( ii ) covered the deficit arising from those transactions from State funds;

( iii ) promoted the preferential financing by the Agricultural Bank of Greece of Kydep' s operations on the market in feed grain;

( iv ) failed to cooperate in the Commission' s investigations;

( v ) failed to notify to the Commission the financial facilities which it was granting to Kydep .

I - 13 . As far as the first of the those complaints is concerned, it may be noted that the Court, in its judgment in Case C-281/87 Commission v Greece [1989] ECR 4015, had occasion to express its view on a circular which the Greek Minister for Agriculture had sent Kydep on 7 July 1982, requesting Kydep to purchase, at prices laid down by the national administrative authorities, all consignments of inferior-quality durum wheat held by producers or threshing undertakings .

14 . The Court held at paragraph 17 of the judgment :

"the circular letter in issue is contrary to the provisions governing the common organization of the market in cereals inasmuch as it constitutes a national intervention measure in a field where the Community rules are exhaustive ".

15 . With regard to the Greek authorities' intervention on the market in feed grain at issue here, the Commission has supplied a great deal of evidence, of which I propose to point out only the most cogent items .

16 . First, the Commission has produced the Minutes of a meeting held on 7 November 1980 and attended by ( amongst others ) the Minister for the Coordination of EEC Issues, the Minister for Agriculture and the Minister for Trade . It was decided at that meeting that Kydep should continue to handle stocks of animal feed after 1 January 1981, on which date the accession of Greece became definitive . Kydep' s exercise of that function involves the following arrangements :

"( i ) Buying-in by Kydep of surpluses of feed grain at the appointed intervention price, using loans guaranteed by the Greek State . Confidential aid to Kydep from public funds in order to cover the cost of handling stocks .

( ii ) Importation by Kydep of additional quantities of animal feed and subsequent sale thereof at the intervention price . Confidential use of public funds to cover the difference between the cost price and the intervention price, and handling costs . This method of handling animal feed guarantees a single selling price for animal feed and regular supplies to all stock breeders in the country ..."

17 . In my opinion, the purchases referred to in that document cannot be intervention purchases under the Community rules, since the Community bears the cost of that scheme and it would therefore be unnecessary for them to be financed by means of loans guaranteed by the Greek State . Indeed, the defendant admitted at the hearing that it had, after accession, considered it essential to support the national stock-breeding sector .

18 . Further details are to be found in a series of decisions by various Greek governmental bodies, which the defendant finally produced at the Court' s behest . They reveal the operation, within the Greek administration, of a finance committee which laid down the prices at which Kydep was permitted to sell the stocks of feed grain which it had acquired .

19 . The Finance Committee adopted Decision No 1533 of 15 April 1981 under which :

"The Finance Committee ... decides unanimously ... [that] the selling price for maize from 1 January 1981 shall be set at DR 10 per kg, including Kydep' s fees of DR 1.8 per kg; the Ministry of Trade shall be responsible for the implementation of this decision ."

20 . By Decision No 1733 "on the fixing of the selling price for feed grain ( maize, barley, etc .)" the Finance Committee laid down :

"a single price, namely DR 10 per kg, for the sale through Kydep of feed grain ( maize, barley, etc .) to cattle and poultry breeders and animal feed industries shall be sold exclusively for the purpose of meeting the requirements in animal feed at a national level . The price mentioned above relates both to the 1980 stocks ... and to the feed grain purchased, or to be purchased on or after 1 January 1981 by Kydep, either on the domestic market pursuant to the support measures for the prices of cereals harvested in 1981, in accordance with Decision No 1573/81 of the Monetary Committee, or on the foreign markets ".

21 . Decision No 1761 of the Finance Committee, the content of which is substantially the same as that of Decision No 1733, replaced the latter on 24 September 1981 .

22 . It must be emphasized that both decisions provide expressly that "the price laid down shall relate both to the 1980 stocks ... and to the feed grain purchased, or to be purchased on or after 1 January 1981 by Kydep ... pursuant to the support measures for the prices of cereals harvested in 1981 ". That proves that, contrary to the assertions of the Greek Government, its administrative bodies did not confine themselves to supervising the disposal of the remainder of the 1980 harvest but continued to intervene after completing that task . The document also suggests that Kydep was doubtless not at liberty to lay down its purchase prices at will, either .

23 . The defendant also produced other decisions by Greek Government bodies laying down Kydep' s selling prices . The decisions in question are Joint Decisions Nos 205333 and 205334 of the Ministers for Finance, Agriculture and Trade, and Decision No 206586 of the Minister for Agriculture .

24 . Decision No 205333 of 16 July 1982 provides that :

"A single price of DR 13 per kg shall be laid down for the sale of feed grain ( wheat, barley, etc .) sold through Kydep to Greek cattle and poultry breeders in general, and to the animal feed industry, who are to sell their products solely for the purpose of meeting national animal feed requirements ".

25 . Decision No 205334 of 22 July 1982 fixes :

"the price for the sale of feed grain ( maize, barley, etc .) to industries producing compound feedingstuffs for animals, where such compound feedingstuffs are exported, at a level equal to the threshold price charged in each specific instance plus the relevant costs of handling, transportation, etc . incurred by Kydep ".

26 . Lastly, Decision No 206586 of the Minister for Agriculture of 30 September 1982 provides that :

"stocks of up to 300 000 tonnes of maize from the national harvest of 1982 shall be sold through Kydep to Greek cattle and poultry breeders ( whether or not affiliated to a cooperative ( 2 )) at the reduced price of DR 12.30 per kg ."

27 . Moreover, the letter of 29 July 1982 ( reference No 205336 ) sent to Kydep by the Ministry of Agriculture lays down the quantities of feed grain to be sold per day and per animal for the various species and categories of animal, and the proportions to be observed between the various types of cereal ( maize, barley and wheat ).

28 . It is thus established that the Greek authorities, acting through Kydep, intervened in 1981 and 1982 on the market in feed grain in the manner described by the Commission .

II - 29 . It is also clear from the documents before the Court that the Greek State covered the deficit incurred by Kydep as a result of selling cereals at prices which did not always enable it to recoup the purchase price and its own costs .

30 . Thus the aforesaid Decisions Nos 1733 and 1761 authorize in identical terms :

"the absorption of the difference between the cost price, resulting from the purchase, storage and transportation of the goods by Kydep, and the selling price of DR 10 per kg, by the loan made by the Bank of Greece to the Agricultural Bank of Greece, borne by the State budget, and to be charged to the current-expenditure account for 1982 ".

Decision No 205333, mentioned above, permits :

"the absorption by the current expenditure account of the State budget of the difference between the cost price, which shall include the cost of purchase, management, transportation, etc . by Kydep and the selling price of DR 13 per kg ".

Lastly, Decision No 206586, mentioned above, provides that :

"The financial liability resulting from the aforesaid additional sales shall be charged to the current-expenditure account of the State budget ."

31 . Similarly, the Commission has produced in Annex 4 to its reply Report No 189 of 14 February 1984, prepared by the committee set up by Joint Decision No 2028 of 17 March 1981 of the Ministers for Trade and Agriculture, which lays down "the amount ultimately absorbed by the State for 1982 in respect of the management of feed grain ( barley, maize and wheat ) by Kydep ". The defendant does indeed contend that the committee was created solely to dispose of the stocks held before the accession of Greece to the Communities, but the quantities and sums referred to in the report rule out the possibility that only those stocks were involved .

32 . It is in my view legitimate to conclude in the light of those documents that the Greek Government absorbed the differences between cost price and selling price in Kydep' s transactions in 1981 and 1982 involving maize and barley .

III - 33 . The documents before the Court also clearly substantiate the third complaint made by the Commission, namely that the Greek authorities promoted the preferential financing by the Agricultural Bank of Greece of Kydep' s operations on the feed grain market .

34 . A letter sent on 2 April 1982 by the Finance Committee to the Bank of Greece includes an excerpt from the report of the 357th meeting of that committee, in the course of which the committee :

"permits the Agricultural Bank of Greece to receive financing from the Bank of Greece of an amount not exceeding DR 10 000 000 000 for the purpose of granting a loan to Kydep for the purchase of animal feed on foreign markets and for its resale to cattle and poultry breeders and to animal-feed industries with a view to meeting national requirements in 1982 ".

That decision lays down the interest rate for the loan to be granted by the Agricultural Bank to Kydep and the interest rate for the loan by the Bank of Greece to the Agricultural Bank .

35 . The committee "orders ( 3 ) Kydep to sell the animal feed financed as described above only against payment in cash" and gives the Minister for Finance its approval for the granting of a guarantee by the Greek State to the Agricultural Bank of Greece covering the repayment of capital, interest and other charges levied on that loan to Kydep in respect of the full amount of DR 10 000 000 000 .

36 . Furthermore, the abovementioned Decision No 206586 of the Minister for Agriculture, dated 30 September 1982, provides on the one hand that the Agricultural Bank of Greece is to grant special loans to purchasers of feed grain and on the other hand that the State is to allocate to the Agricultural Bank of Greece the necessary credits to grant those State - guaranteed loans, which will enable Kydep to carry out the sale in question . However, the fact that Kydep was thus able to obtain credits of which repayment was guaranteed by the State and the interest rate was set by a body dependent on the State proves beyond dispute that the Greek State did, as the Commission' s application recites, promote the preferential financing of the operations of that union of cooperatives .

37 . However, I do not believe that the Commission has made out its case that Kydep benefited from an interest rate lower than the market rate or that it did not have to repay part of the loans .

38 . So far I have referred only to documents emanating from the Greek authorities . In my view they have substantiated the first three complaints as far as 1981 and 1982 are concerned . During the oral procedure, however, the Commission stated that its action covered the entire period preceding the date on which the letter of formal notice was sent . There were, however, two formal notices . The notice extending the scope of the complaints against the Hellenic Republic to all types of feed grain is dated 23 December 1985 . It therefore remains to be determined whether the Commission succeeded in proving that the infringements persisted during the period from 1983 to 1985 inclusive .

39 . In that connection it should be recalled that the Commission attached to its application documents which allude to the official decisions mentioned above, the content of which has now been confirmed by the production of the texts themselves . The documents in question are, first, the report of Kydep' s legal department dated 1 January 1985 and, secondly, a report by the directorate-general of that legal department, submitted at the 36th general meeting on 12 December 1986 . I prefer not to rely on the report of the legal department, the evidentiary value of which is debatable, because it is a purely internal document . On the other hand, it seems to me that the report of the directorate-general may legitimately be cited, being a document which by nature is designed to be made public, at least amongst the many cooperatives embraced by Kydep . Indeed, a member of parliament quoted excerpts from it during the sitting of the Greek Parliament on 6 March 1987 ( see Annex II to the reply ). That report, dated - as was noted above - 12 December 1986, describes as a continuing practice the following operations :

"The stocks of barley collected every year are taken over by the 'management board for animal feed' , which forms a special management unit under the aegis of the Ministry of Agriculture; the latter also covers the difference between the cost price to Kydep and the selling price ..." ( bottom of p . 9 of the report ).

"... Like barley, maize is the subject of special management, the purchase prices payable on collection and the selling prices to stock breeders being set by the Ministry ..." ( p . 10 of the report ).

"... It is common knowledge that this animal feed is subject to management which, although ostensibly provided on behalf of the producers, is in reality management on behalf of the State" ( bottom of p . 13 of the report ).

40 . The report further explains that :

"As part of its efforts to ensure the development of national livestock breeding, the government intervenes in the pricing of animal feed by subsidizing part of the cost of those products ... A committee consisting of civil servants from the finance departments of the Ministry of Agriculture and Kydep then determines the management deficit, which is covered by the Ministry of Agriculture under the relevant heading in its budget" ( p . 4, paragraph 2 ).

41 . In my opinion, therefore, it may properly be concluded that the practices in question continued throughout 1983, 1984 and 1985 .

42 . It now remains to consider whether, by pursuing those practices, the Hellenic Republic failed to fulfil its obligations under Regulation No 2727/75 on the common organization of the market in cereals .

43 . Pursuant to Article 3 of Regulation No 2727/75, as amended by Council Regulation ( EEC ) No 1870/80 of 15 July 1980 ( Official Journal 1980 L 184, p . 1 ), the Community fixes every year a common single intervention price for common wheat, rye, barley and maize, and a common target price for rye, barley and maize . Article 5, as amended by Council Regulation ( EEC ) No 1254/78 of 12 June 1978 ( Official Journal 1978 L 156, p . 1 ) provides for a threshold price to be fixed for the Community in respect of common wheat, durum wheat, barley, maize and rye .

44 . Under Article 7(1 ), as amended by Council Regulation ( EEC ) No 1143/76 of 17 May 1976 ( Official Journal 1976 L 130, p . 1 ):

"The intervention agencies designated by the Member States shall be obliged to buy in cereals mentioned in Article 3 which have been harvested in the Community and are offered to them, provided that the offers comply with conditions, in particular in respect of quality and quantity, to be determined in accordance with paragraph 5 ."

45 . Article 7(3 ) lays down the conditions subject to which quantities purchased may be offered for sale for export to non-member countries or for supply to the internal market .

46 . Lastly, Article 8 ( as amended by Regulation No 1143/76 of 17 May 1976, cited above ) provides as follows :

"To avoid substantial purchases having to be made in certain regions of the Community under Article 7(1 ), it may be decided that the intervention agencies take particular intervention measures ."

47 . The conclusion to be drawn from all those provisions, which were not substantially amended during the period material to this case, is that except in the case of intervention purchases and subsequent sales by the intervention agencies officially designated by the Member States under the conditions laid down by Community legislation, operations on the cereals market must be left to the free interplay of supply and demand . Even in the event of regional difficulties it is only the intervention agencies which are entitled to take particular measures, after being instructed to do so by the Commission by way of the management committee procedure ( Article 8(4 ) ).

48 . The authorities of a Member State may not therefore instruct any public or private body to buy and sell cereals at prices fixed by those authorities - nor a fortiori may they cover the deficits liable to arise from such operations or promote their financing by other means . Further articles under Title I of the regulation entitled "Prices" give an exhaustive list of aid which may be paid by Member States as "carry-over payments" or "production refunds ". The Hellenic Republic has therefore failed to fulfil its obligations under Title I of Regulation No 2727/75 .

49 . Furthermore, the Court has consistently held that measures such as those in dispute here are not compatible with the principles and provisions of the common organization of the markets, of which the common organization of cereals may be said to represent the archetype .

50 . It will be sufficient to refer to paragraph 16 of the abovementioned judgment in Case C-281/87 Commission v Greece, concerning the purchase by Kydep of inferior-quality durum-wheat from the 1982 harvest, which reads as follows :

"The Court has held ( see, inter alia, the judgment of 28 November 1978 in Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, and the judgment of 17 January 1980 in Joined Cases 95 and 96/79 Procureur du Roi v Kefer and Delmelle [1980] ECR 103 ) that the common organizations of the markets are based on the concept of an open market to which every producer has free access under genuinely competitive conditions and the functioning of which is regulated solely by the instruments provided for in those organizations . In particular, in sectors covered by a common organization of the market, and a fortiori when that organization is based, as in the present case, on a common price system, Member States can no longer take action, through national provisions adopted unilaterally, affecting the machinery of price formation as established under the common organization ."

51 . The principle set out in the last sentence of that quotation was, unless I am mistaken, first laid down in the judgment in Case 31/74 Galli [1975] ECR 47, ( 4 ) in which the Court nevertheless added

"that the price system established by Regulations Nos 120/67 [on the common organization of the market in cereals] and 136/66 [on the common organization of the market in oils and fats] is applicable solely at the production and wholesale stage, with the result that these provisions leave Member States free - without prejudice to other provisions of the Treaty - to take the appropriate measures relating to price formation at the retail and consumption stages, on condition that they do not jeopardize the aims or functioning of the common organization of the market in question" ( paragraph 34 ).

The purchase price paid to producers and the selling price charged to breeders and manufacturers of animal feed - both dictated to Kydep by the Greek authorities - clearly relate exclusively to wholesale trade .

52 . In its earlier judgment in Case 82/71 Pubblico Ministero Italiano v SAIL [1972] ECR 119, the Court held :

"Thenceforth [that is, once the provisions for the common organization of a market had entered into force] it was for the Community authority alone to decide upon the provisional maintenance of any national system of organization, intervention or supervision ..."

53 . Lastly, the judgment in Case 169/82 Commission v Italy [1984] ECR 1603, at p . 1617, contains the following passage :

"It is clear from Regulation No 2727/75, and in particular from Article 2 thereof, that the regulation provides for a system of prices and other measures intended to establish a system of uniform prices for cereals throughout the Community . Article 10 provides for the grant on certain conditions of aid of a uniform amount for the whole Community for the production of durum wheat . It follows from that system that any support measure must be decided upon at Community level in order to avoid the risk of jeopardizing the functioning of the system by the grant of additional aid" ( paragraph 18 ).

54 . It is therefore clear that the instructions given by the Greek authorities to Kydep to buy or sell feed grain at prices they had set are contrary to the provisions on the common organization of the market in cereals inasmuch as they constitute national intervention measures in an area in which Community legislation is exhaustive . That applies a fortiori to the measures adopted by those authorities to cover the financial liabilities incurred by Kydep as a result of such intervention .

IV - 55 . Whether the complaint of infringement of Article 5 of the Treaty can be upheld seems to me more doubtful . In the reasoned opinion ( second paragraph on p . 2 and bottom of p . 6 ) the Commission had stated that the Hellenic Republic had failed to fulfil :

"its obligations under Article 5 ...

( a ) by pursuing operations which jeopardize the functioning of other sectors of the agricultural market which depend on the proper functioning of the cereals market for the purposes of their production costs - particularly the markets in pigmeat, poultrymeat and eggs, beef and veal and dairy products, and

( b ) by failing to supply the requisite explanations, for the involvement of the Greek authorities in the management of the market in feed grain ".

56 . The application to the Court does not specify whether either or both of those complaints are still included in the action . A mere reference to Article 5 is to be found in the applicant' s conclusions, without further elaboration . The reference is thus all the more ambiguous since it could quite well be taken not to constitute a further head of complaint but solely an ancillary complaint relating to the infringement of the provisions governing the common organization of the markets . It is true that the Commission, in its reply ( fourth paragraph on p . 7 ), reiterates the following :

"The fact remains that the Greek Government has never been prepared to produce a single one of those decisions, which bears out its failure to comply with the duty of administrative cooperation with the officials of the Commission, as is required by Article 5 of the EEC Treaty ."

57 . Moreover, it is clear from the documents produced by the Commission in response to the questions put to it by the Court, and in particular from the telex sent by the Commission' s Director-General for Agriculture to the competent Greek authorities dated 3 June 1987 - that is, after the reasoned opinion had been sent ( 5 February 1987 ) but before the application had been lodged ( 2 February 1988 ) - that the Greek authorities were informed of the commencement of an inspection under Article 9 of Regulation ( EEC ) No 729/70 on the financing of the common agricultural policy ( Official Journal, English Special Edition 1970 ( I ), p . 218 ) and that the Commission had asked them to supply a whole series of particulars regarding relations between themselves and Kydep . It is not disputed that five reminders sent to the competent Greek authorities and to Kydep between 3 June and 23 October 1987 produced no substantive results . ( 5 ) None of that evidence, however, appears in the application to the Court .

58 . Since the Commission has not specified in its application the grounds on which it considered that Greece had failed to fulfil its obligations under Article 5, I would propose that the Court not uphold the claim that Article 5 was infringed .

59 . Having said that, I wish to make the following observations in case the Court should none the less consider the complaint to have been worded precisely enough to warrant its being upheld .

60 . First, there can be little doubt that the Hellenic Republic has indeed failed throughout to comply with its duty to act in good faith under Article 5, because I believe that when the Commission, by way of a letter of formal notice, calls in question a provision of national law or a national practice the Member States are obliged to forward to the Commission, unrequested, the text of such provisions and the other official documents connected with the dispute .

61 . Although it is, of course, normal for the Commission and the Member States sometimes to reach different conclusions as to the compatibility with Community law of certain national legal provisions or certain national practices, it is nevertheless essential for the Commission to be fully and properly informed of the existence, nature and scope of such provisions or practices, in order that the legal discussion may proceed on the basis of accurate information .

62 . As far as the common organization of the market in cereals is concerned, that duty to furnish, unrequested, all relevant information is, in any event, expressly formulated in Article 24 of Regulation No 2727/75, which provides that :

"Member States and the Commission shall communicate to each other the information necessary for implementing this regulation ."

In my view, that includes not only the usual particulars as to the volume of production, imports, exports and intervention purchases but also, where appropriate, any other information on the functioning of the market in cereals .

63 . Since the Commission, in its application, referred in general terms to the infringement of the provisions of that regulation and subsequently specified that the reference included Article 24, I take the view that the Court is entitled to find that the defendant has failed to comply with Article 24 .

V - 64 . The complaint that the aid was not notified pursuant to Article 93(3 ) of the Treaty is certainly well founded since, by virtue of having its deficits covered by the State budget, Kydep enjoyed financial assistance from the State such as to constitute "aid" for the purposes of Article 92(1 ) of the Treaty . It is not denied that such financial assistance was not at any time notified to the Commission .

Conclusion

65 . For the reasons set out above I propose that the Court should declare the application admissible and should find that the Hellenic Republic has failed to fulfil its obligations under the provisions of Title I (" Prices ") and under Article 24 of Regulation No 2727/75 on the common organization of the market in cereals, and also under Article 93(3 ) of the EEC Treaty . Accordingly, the defendant Member State must be ordered to pay the costs of the case .

(*) Original language : French .

( 1 ) OJ L 281, 1.11.1975, p . 1 . The regulation has since been amended on numerous occasions .

( 2 ) The emphasis in paragraphs 24, 25, and 26 is mine .

( 3 ) Emphasized in the original .

( 4 ) See also the judgment in Case 10/79 Toffoli v Regione Veneto [1979] ECR 3301 .

( 5 ) See the addendum to the summary of the results of inspection carried out for the clearance of the EAGGF accounts ( Guarantee Section ) for the financial year 1986, Annex VI to the replies given by the Commission to the questions put by the Court .