Freskot AE v Elliniko Dimosio.
Date: 2003-05-22
19.  Where there is a regulation on the common organisation of the market in a given sector, the Member States are, according to settled case-law, under an obligation to refrain from taking any measures which might undermine or create exceptions to it (see, as regards the common organisation of the market for poultrymeat, Case 111/76   Van den Hazel   [1977] ECR 901, paragraph 13, and as regards other sectors,   inter alia  , Case C-456/00   France   v   Commission   [2002] ECR I-11949, paragraph 31, and Case C-462/01   Hammarsten   [2003] ECR I-781, paragraph 30).
20.  Regulation No 2777/75 makes no reference either way as to the compatibility of national provisions, such as those at issue in the main proceedings on the compulsory insurance of agricultural holdings against natural risks, with the common organisation of the market for poultrymeat.  Consideration must therefore be given to the question whether the existence of such a national scheme, including the contribution, is such as to undermine the aims and objects of that common organisation (see,   inter alia  , Case 51/74   Van der Hulst   [1975] ECR 79, paragraphs 26 to 28).
22.  Regulation No 2777/75 essentially lays down, first, provisions enabling certain Community measures to be adopted in order that supply may be adjusted to market requirements (see, to that effect, Joined Cases 47/83 and 48/83   Pluimveeslachterijen Midden-Nederland and  Van Miert   [1984] ECR 1984 1721, paragraph 17) and, second, provisions establishing a single trading system at the external frontiers of the Community, designed to avoid disturbances to Community production caused by low prices charged for products from non-Member States both on the Community market and on other markets.
26.  Furthermore, it follows both from the overall scheme of Regulation No 2777/75 and from its provisions, in particular Article 2, that that regulation makes a considered economic policy choice to rely essentially on market forces to attain the desired balance.  Accordingly, as regards trade between Member States, the organisation of the market in poultrymeat is based upon freedom of commercial transactions under conditions of genuine competition (see, to that effect,   Van den Hazel  , cited above, paragraphs 16 and 18).
27.  It is therefore necessary to determine whether free trade between Member States is likely to be restricted by national rules such as the contribution (see to that effect,   inter alia  ,   Pluimveeslachterijen Midden-Nederland and  Van Miert  , cited above, paragraph 28).
30.  It is, however, for the national court to decide whether there is any evidence on the markets in question that the contribution does, in fact, have such an effect, the Court being able to identify certain features of Community law to facilitate such a decision (see, to that effect, in respect of a common organisation of the market of a type different from that laid down by Regulation No 2777/75,   inter alia  , Joined Cases 36/80 and 71/80   Irish Creamery Milk Suppliers Association   [1981] ECR 735, paragraph 19).
31.  In that context, the relatively small amount of the contribution, at least for the products of animal origin at issue in the main proceedings, is one factor showing that it has a neutral effect on trade, whilst its indeterminate duration indicates the opposite (see to that effect,   inter alia  ,   Irish Creamery Milk Suppliers Association  , cited above, paragraph 20, and Case C-235/90   Aliments Morvan   [1991] ECR I-5419, paragraphs 10 and 11).
38.  As a preliminary point, the Treaty provisions prohibiting quantitative restrictions or measures having equivalent effect are an integral part of the common organisation of the market for poultrymeat (see, to that effect, Case 83/78   Pigs Marketing Board   [1978] ECR 2347, paragraph 55).  The assessment of the contribution in the light of those provisions has already been carried out in the course of considering the principle of free trade included in that common organisation of the market (see paragraphs 27 to 33 of the present judgment).
39.  As regards the Treaty provisions concerning charges having equivalent effect to customs duties (Articles 9 and 12 of the Treaty and Article 16 of the EC Treaty (repealed by the Treaty of Amsterdam)) and those relating to discriminatory internal taxation (Article 95 of the Treaty), it should be noted that those provisions cannot be applied together, so that the same charge cannot, under the system established by the Treaty, belong to both those categories at the same time (see,   inter alia  , Case C-234/99   Nygård   [2002] ECR I-3657, paragraph 17, and the case-law cited therein, and Case C-101/00   Tulliasiamies and Siilin   [2002] ECR I-7487, paragraph 115).
42.  The contribution is not charged on the product solely because it crosses the border as such.  That factor constitutes the essential feature of a charge having an effect equivalent to a customs duty which distinguishes it from an internal tax within the meaning of Article 95 of the Treaty (see, to that effect,   inter alia  , Joined Cases C-441/98 and C-442/98   Michaïlidis   [2000] ECR I-7145, paragraph 22, and the case-law cited therein).
43.  Instead, the contribution forms part of a general system of taxation which, in principle, is applied uniformly, in particular in respect of the rate and chargeable event thereof, to Greek agricultural products alone, whether they are intended for the domestic market or for export, and which is used to fund a public body responsible for the prevention of, and compensation for, damage caused to Greek agricultural holdings by natural risks (see, to that effect,   Nygård  , cited above, paragraph 24).
44.  Further, there is nothing in the file sent to the Court by the referring court which gives rise to doubt that the allocation of the revenue from the contribution to finance the benefits for which ELGA is responsible is of equal benefit both to domestic agricultural products intended for processing or marketing on the domestic market and to those intended for export (see, to that effect,   Nygård  , cited above, paragraph 39).  It is a measure for the protection of domestic agricultural production as such.
45.  With regard to Article 95 of the Treaty, it must be noted that that provision must be interpreted as also prohibiting any tax discrimination against products intended for export to other Member States (see Case 142/77   Larsen and Kjerulff   [1978] ECR 1543, paragraph 27, and   Nygård  , cited above, paragraph 41).
46.  It should be noted however that in the main proceedings the export of the product does not constitute the chargeable event giving rise to the levying of the contribution within the context of the system of internal taxation in question.  It follows that Article 95 of the Treaty does not apply in the present case (see, to that effect,   Larsen and Kjerulff  , cited above, paragraph 24).
47.  Moreover, and in any event, it is apparent from the file that the contribution cannot be considered to be discriminatory since, as was stated at paragraphs 43 and 44 of the present judgment, it applies equally to domestic agricultural products processed or marketed on the national market and to those intended for export, and the revenue from it is available equally to all agricultural holdings (see, to that effect,   Nygård  , cited above, paragraph 42).
53.  Even if those benefits did fall within the field of social security, as the Greek Government submits, that is not sufficient to preclude application of Articles 59 and 60 of the Treaty (see to that effect,   inter alia  , Case C-157/99   Smits and Peerbooms   [2001] ECR I-5473, paragraph 54 and the case-law cited therein).
54.  Furthermore, the concept of   "services"   within the meaning of Article 60 of the Treaty implies that they are ordinarily provided for remuneration.
55.  The Court has already held that the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question, and is normally agreed upon between the provider and the recipient of the service (see Case 263/86   Humbel and Edel   [1988] ECR 5365, paragraph 17, and Case C-109/92   Wirth   [1993] ECR I-6447, paragraph 15).
63.  However, in so far as that compulsory insurance scheme also covers insurable natural risks, it might constitute a restriction of the freedom of insurance companies established in other Member States, who wish to offer contracts of insurance covering such risks in Greece, to provide services, in that it hinders or renders less attractive, or even prevents, directly or indirectly, the exercise of that freedom (see to that effect,   inter alia  , Case C-67/98   Zenatti   [1999] ECR I-7289, paragraphs 26 and 27, and Case C-294/00   Gräbner   [2002] ECR I-6515, paragraph 38 and the case-law cited therein).
70.  As regards the proportionality of that compulsory insurance scheme, it appears from the documents in the file that the compulsory insurance scheme with ELGA provides a minimum level of cover and that Greek farmers are, therefore, at liberty to supplement it by taking out additional policies, assuming that these are available on the market.  That fact argues in favour of the proportionality of the compulsory insurance scheme at issue in the main proceedings.
77.  It is true that the social purpose of that compulsory insurance scheme is not, in itself, sufficient to preclude ELGA's activity from being classified as an economic activity for the purposes of the Treaty provisions on competition (see,   inter alia  , Joined Cases C-180/98 to C-184/98   Pavlov and Others   [2000] ECR I-6451, paragraph 118, and Case C-218/00   Cisal   [2002] ECR I-691, paragraph 37).
81.  The first point to note in that regard is that the national legislation at issue in the main proceedings clearly establishes that the benefits provided by ELGA are granted through State resources and are imputable to the State within the meaning of the Court's case-law (see,   inter alia  , Case C-482/99   France   v   Commission   [2002] ECR I-4397, paragraph 24).
83.  According to the Court's case-law, in particular measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect, are considered to constitute aid (see,   inter alia  , Case C-200/97   Ecotrade   [1998] ECR I-7907, paragraph 34, and Case C-75/97   Belgium   v   Commission   [1999] ECR I-3671, paragraph 23).
85.  The third question posed is whether such benefits, assuming that they constitute an advantage for the recipients, satisfy the condition of selectivity under Article 92(1) of the Treaty (see,   inter alia  , Case C-143/99   Adria-Wien Pipeline and Wietersdorfer  & Peggauer Zementwerke   [2001] ECR I-8365, paragraph 41).
86.  The scope of the compulsory insurance scheme at issue in the main proceedings may, depending on the circumstances, be justified in the light of the nature or general scheme of the system of benefits provided by ELGA, in so far as it appears from the documents in the file that that scheme is intended to offer a minimum of protection to agricultural holdings against the natural risks to which they are, as such, particularly exposed (see to that effect,   inter alia  ,   Adria-Wien Pipeline and Wietersdorfer  & Peggauer Zementwerke  , cited above, paragraph 42, and Case C-351/98   Spain   v   Commission   [2002] ECR I-8031, paragraphs 42 and 43).