Commission of the European Communities v Hellenic Republic.
Date: 1990-12-13
16 In that regard it must be borne in mind first of all that, as the Court has consistently held ( see, in particular, the judgment in Case C-217/88 Commission v Germany [1990] ECR I-2879, paragraph 10 ) an application brought under Article 169 of the EEC Treaty can be based only on the arguments and submissions already set forth in the reasoned opinion .
24 Furthermore, the Commission' s argument to the effect that the complaints relating to the "market trend" and "storage cost" factors merely develop an argument put forward during the pre-litigation procedure cannot be accepted . As the Court has held on several occasions ( see, in particular, the judgment in Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 21 ), the reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty . Accordingly, even if the Commission intended to contest the system of maximum consumer prices in general, it was under an obligation to state, in its reasoned opinion, the actual reasons why it considered that system to be contrary to the provisions of the Treaty .
26 In its application the Commission stated that it was seeking a declaration against Greece inter alia "for all the reasons set out in the letter of formal notice and in the reasoned opinion ".
27 Greece maintains that the complaints of which at least the gist is not set out in the application are inadmissible .
28 The objection of inadmissibility raised by Greece must be upheld . According to Article 19 of the Protocol on the Statute of the Court of Justice of the European Communities and Article 38(1)(c ) of the Rules of Procedure, the application must state, inter alia, the grounds on which the application is based . Accordingly, in any application made under Article 169 of the Treaty, the Commission must indicate the specific complaints on which the Court is called upon to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based .
29 It must also be pointed out that any action brought under Article 169 is preceded by a pre-litigation procedure which may lead the Commission to abandon, as in this case, certain complaints set out in the letter of formal notice or in the reasoned opinion . Consequently, it is indispensable that the complaints upon which the Court is called to rule should be indicated in the application for the purpose of the precise delimitation of the subject-matter of the action .
30 It follows that the complaints set out in the letter of formal notice and in the reasoned opinion but not in the application must be declared inadmissible .
Substance
( a ) The right of the State with regard to the importation of crude oil
33 Furthermore, Article 30 provides that quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States . As the Court has consistently held ( see, primarily, the judgment in Case 8/74 Procurer du Roi v Dassonville [1974] ECR 837, paragraph 5 ), that provision applies to all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade .
40 In that regard it must be pointed out that the action brought under Article 169 is for a declaration that Greece has failed to fulfil its obligations under the Treaty and that it has failed to put an end to that infringement within the time set by the Commission in its reasoned opinion . It follows that, for the purposes of these proceedings, the scope of the State' s rights with regard to the importation and marketing of petroleum products must be determined by reference to the situation existing when the time which Greece was given in order to comply with the reasoned opinion ran out .
41 At that time the Greek State had, by virtue of Article 7(2 ) and Article 4(1 ) and ( 2 ) of Law No 1571/85 and the measures implementing those provisions, the exclusive right to import and market a quantity of petroleum products corresponding to 65% of the requirements of the domestic market . Accordingly, when the time within which it was to comply with the reasoned opinion ran out, Greece had the power to exert an appreciable influence on imports of petroleum products from other Member States by virtue both of its right with regard to the importation of petroleum products and its right with regard to the marketing of such products . It follows that, for the purposes of these proceedings, the rights of the Greek State with regard to the importation and marketing of petroleum products must be regarded as constituting a State monopoly of a commercial character within the meaning of Article 37 .
42 Furthermore, as the Court has held(in particular, in the judgment in Case 78/82 Commission v Italy [1983] ECR 1955, paragraph 11 ), it is clear not only from the wording of Article 37 but also from its position in the general scheme of the Treaty that the article is designed to ensure compliance with the fundamental rule of the free movement of goods throughout the common market, in particular by the abolition of quantitative restrictions and measures having equivalent effect in trade between Member States, and thereby to maintain normal conditions of competition between the Member States should a given product, in one or other of those States, be subject to a national monopoly of a commercial character .
43 In that regard it must be observed that, according to Article 9(4 ) of Law No 1571/85, distribution companies are required to obtain their supplies from Greek public-sector refineries to the extent of a percentage of the requirements of the domestic market corresponding to the unadjusted part of the marketing monopoly . It is plain from that provision that, by maintaining in force the State' s rights with regard to the importation and marketing of petroleum products, Greece is seeking, as it has itself acknowledged, to secure an outlet for the products of its public-sector refineries .
44 It follows that to maintain in force the State' s rights with regard to the importation and marketing of petroleum products gives rise to discrimination within the meaning of Article 37(1 ) against exporters established in other Member States .
48 Admittedly, in its judgment in Case 72/83 Campus Oil Ltd v Minister for Industry and Energy [1984] ECR 2727, paragraph 51, the Court stated that a Member State which is totally or almost totally dependant on imports for its supplies of petroleum products may rely on grounds of public security within the meaning of Article 36 of the Treaty for the purpose of requiring importers to cover a certain proportion of their needs by purchases from a refinery situated in its territory at prices fixed by the competent ministry on the basis of the costs incurred in the operation of that refinery, if the production of the refinery cannot be freely disposed of at competitive prices on the market concerned .
58 In that regard it must first be borne in mind that, as the Court stated in its judgment Campus Oil Ltd, cited above ( paragraph 35 ), the aim of ensuring a minimum supply of petroleum products at all times is capable of constituting an objective covered by the concept of public security within the meaning of Article 36 of the EEC Treaty . However, measures adopted on the basis of Article 36 cannot be justified unless they are necessary for the attainment of the objective pursued by that article and that objective is not capable of being achieved by measures which are less restrictive of intra-Community trade ( see the judgment in Case C-196/89 Nespoli and Crippa [1990] ECR I-3647, paragraph 15 ).
73 In that regard it must be observed that the Greek rules relating to the system of maximum consumer prices for petroleum products provide for account to be taken, in the context of the machinery for fixing prices, of numerous factors relating both to imported and to domestic products .