OPINION OF ADVOCATE GENERAL FENNELLY

delivered on 14 March 1996 (*1)

Introduction

The Hellenic Republic has brought an action under Article 173 of the Treaty establishing the European Community seeking the annulment, in two product areas, of Commission Decision 93/659/EC of 25 November 1993, on the clearance of the accounts presented by the Member States in respect of the expenditure for 1990 of the European Agricultural Guidance and Guarantee Fund (hereinafter ‘the EAGGF’ or ‘the Fund’), Guarantee Section, (1) in so far as it concerns the Hellenic Republic. This case, in part, raises again, and in spite of the contrary hopes expressed by Advocate General Jacobs when the Court was last called upon to consider it, (2) the seemingly perennial question of the relations of the Greek State with the association of agricultural cooperatives, KYDEP; it also relates to the control mechanisms in Greece in respect of Community aid for olive-growers.

Legal and factual background

Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (3) states that refunds on exports to third countries, (4) and intervention intended to stabilize the agricultural markets, (5) granted or undertaken in accordance with Community rules within the framework of the common organization of agricultural markets, shall be financed by the EAGGF, Guarantee Section. Article 5 of the Regulation provides for the clearance of the annual accounts submitted by the national bodies empowered to effect expenditure on those activities. The Commission must make up, or clear, those accounts before the end of the year following the financial year in question. Article 9 of the Regulation contains an effective array of measures designed to enable the Commission, when it considers it necessary, to verify and supplement the information and documents furnished by the Member State authorities. The Commission may, for example, on notice to the Member State, carry out inspections on the spot and is entitled to access to all books and documents relating to expenditure financed by the Fund and to conduct or arrange with the Member States for the conduct of inquiries and inspections. Article 11 of the Regulation establishes the EAGGF Committee, with the task of assisting the Commission in administering the Fund.

Article 8(1) of Regulation No 729/70 requires Member States to take measures to ensure correct execution of transactions financed by the Fund, to prevent irregularities and to recover sums lost thereby. Whereas Article 8(2) attributes the consequences of incomplete recovery to the Community, it clearly excepts from this ‘the consequences of irregularities or negligence attributable to administrative authorities or other bodies of the Member States’. In Netherlands v Commission, (6) the Court stated:

‘Those provisions permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production while leaving the Member States the burden of any other sum paid That strict interpretation of the conditions under which expenditure is to be borne by the EAGGF is necessary, moreover, in view of the objectives of Regulation No 729/70. In fact, the management of the common agricultural policy in conditions of equality between traders in the Member States requires that the national authorities of a Member State should not, by the expedient of a wide interpretation of a given provision, favour traders in that State to the detriment of those in other States where a stricter interpretation is applied.’

When approving the 1989 EAGGF accounts, the Commission, by a decision of 31 July 1992, (7) established an internal inter-service group, in which the various interested departments of the Commission were represented. This inter-service group was charged with developing a methodological approach in respect of Member States which have incorrectly applied Community rules. The guidelines drafted by the inter-service group (8) were approved by the Commission and by the representatives of the Member States in the EAGGF Committee. They do not purport to constitute a binding measure. The report of the group emphasized that any financial adjustment should be based on a failure by the Member State to respect Community rules so as to affect Community expenditure. The choice of the rate of adjustment to be applied should flow from an estimation of risk. The guidelines on flat-rate adjustments (9) mention a number of preexisting risk-assessment methods. Two in particular should be mentioned here: (a) the refusal of a sum calculated by extrapolation from reliable sample inspections, and (b) reimbursement only in the proportion of checks actually carried out to the number of checks required. However, another method was required for situations in which insufficient information is available to support a process of extrapolation, but where it would overstate the likely losses to the Fund to reimburse only in proportion to the number of checks carried out. The inter-service group, therefore, sought to establish the degree of risk posed to the EAGGF by various levels of defective supervision, taking into account a number of circumstantial factors, and proposed three levels of flat-rate reductions in reimbursement, for differing situations: 2%, 5% and 10%. The 10% rate applies ‘where the defect concerns the whole, or the essential elements, of the system of supervision, or the application of essential checks which are designed to ensure regularity of expenditure, so that one can reasonably conclude that there exists a serious risk of generalized losses for the EAGGF’.

I — Animal feed

Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals (10) provides for a system of export refunds which applies to, inter alia, fodder cereals. (11) The refund is the same for the whole Community, (12) and is fixed in a manner ‘which, for the purposes of covering the difference between world prices and prices ruling within the Community ... would take the difference between representative prices within the Community and the most favourable quotations on the world market into account’. (13)

The dispute in respect of animal feed concerns the role of the Greek Central Office for the Management of National Produce (hereinafter ‘KYDEP’), a national association of regional agricultural cooperatives for cereals, vegetables and animal feedingstuffs. Its main functions are to buy up, store and sell its members' products and to act as an EC intervention agency. (14) KYDEP has been found in the past by the Court (or by the Commission, for reasons which satisfied the Court) to have operated a monopoly in trade in grain as agent of the State; (15) to have acted at the behest of the State, which funded its deficits and guaranteed its loans, and specified its purchase and selling prices for grain; (16) to have been a channel, through below-cost selling, for unlawful State interference in the common organization of the market in grain, and for unlawful State aid to producers; (17) and to have sought unlawfully to attract export refunds through the export of grain, which, without such below-cost selling, could not have been exported even with the benefit of the refunds in question. (18) These findings, that KYDEP was under State control, and that KYDEP interfered with the common organization of agricultural markets, relate to the period from 1 January 1981 to 26 March 1984; the period of the 1982 wheat harvest; the autumn of 1985; the period from 1982 to 1986; the 1986 EAGGF financial year; and the 1988 EAGGF financial year. (19)

II — Aids for the production of olive oil

In the context of the system of aids for the production of olive oil, (20) Article 1(1) of Council Regulation (EEC) No 154/75 (21) requires that olive-producing Member States establish a register of olive cultivation, in order to provide necessary data on potential production, and to assist in running the aids system. Council Regulation (EEC) No 3453/80 (22) required this register to be fully in place in Greece by 31 October 1988. Checks are to be applied according to whether or not a producer is a member of a producer organization or association. In the case of organized growers, the organization or association (which submits aid applications to the relevant Member State on behalf of its members) is to make on-the-spot checks in 5% of cases. (23) Article 14(2) of Council Regulation (EEC) No 2261/84 states that ‘[p] roducer Member States shall verify the activities of each producer organization and association and, in particular, that the checking operations have been carried out by these bodies'. In the case of independent producers, on-the-spot checks are to be applied by the relevant Member State to 1 % of olive-growers in areas where the basic data contained in the register are available, and to 4% of growers in other areas. (24)

Article 14(1) of Regulation No 2261/84 also obliges the Member States, more generally, to ’apply a system of checks to ensure that the product in respect of which aid is granted is eligible for such aid. Article 16(1) of the Regulation requires the creation and maintenance of computerized files of olive-cultivation data, in part to assist with supervision and verification in respect of Community aids. Article 14(5) of that Regulation prescribes that the computerized files should be used by the Member States for the checks and verifications provided for in that Article. The Regulation prescribes, further, that the computerized files be operational before 31 October 1990, but that they be used by Member States for the prescribed checks before that date as and when particular files were established.

In Greece, producers who are members of an organization or association (in virtually all cases, the association ELEOURGIKI) outnumber those who are not, by 379323 to 28003. During the 1990 financial year, the olive oil control agency (hereinafter ‘the control agency’) was responsible for checks on organized producers, while the local departmental directorates of the Ministry of Agriculture checked the applications of independent producers. The Member States are less directly involved with checking the applications of organized producers than they are in the case of independent producers; as has been indicated, in the former case, the Member States verify the checking operations of the producer bodies, while in the latter case, the Member State itself is responsible for checks. Thus, it was envisaged in the case of Greece that 2000 checks would be performed by the State itself in 1990 to verify the figures returned for almost 400000 organized producers.

III — The contested decision

By Decision 93/659/EC of 25 November 1993 (hereinafter ‘the Decision’), the Commission cleared the accounts presented by the Member States in respect of the expenditure for 1990 of the Guidance Section of the EAGGF and determined the amount of expenditure recognized as chargeable to the Fund. The Commission considered, as a result of the inspections carried out, that certain amounts declared by the Hellenic Republic for the financial year in question did not meet the conditions laid down in Community rules and could not be recognized as chargeable. This conclusion concerned, in particular, certain expenditures in respect of animal feed and of aids for the production of olive oil. The Commission's Summary Report of 10 June 1993 of its conclusions from the preliminary work for the clearance of the EAGGF Guarantee Section accounts for 1990 (hereinafter ‘the Summary Report’), which is annexed to the contested Decision, sets out the reasons for the financial adjustments which were imposed.

As regards animal feed, the Commission concluded, on the basis of an investigation in 1992, that KYDEP continued, until 16 November 1990, to intervene in the cereals market by fixing buying and selling prices and that losses arising from these operations were covered by the Greek State. As the deficits arising from these interventions greatly surpassed the amounts declared for export refunds, the Commission confirmed a negative reserve of DR 120296279 for the 1989 financial year, and imposed a financial adjustment of DR 866305307 — the entire amount declared for animal feed export refunds — for the 1990 financial year.

In respect of aid for the production of olive oil, the Commission made three findings: (i) that the register of olive cultivation required by Regulation No 154/75 was not in place, despite the passing of the 1988 deadline; (ii) that the compilation of computerized files pursuant to Regulation No 2261/84 had been subject to serious delays, with many major production regions still uncovered, despite the impending deadline of 31 October 1990, and that the relevant agency, DIDAGEP, did not use the partially complete files to make checks before making aid payments; and (iii) that only 499 on-the-spot checks were conducted throughout Greece during the relevant period, rather than the 5% level required by the applicable Community rules. As the situation in Greece did not offer the guarantees required by the EAGGF, the Commission decided on an across-the-board deduction of 10% from the amount of aid paid under this heading for the relevant financial year, viz. DR 981233150.

Contentions of the parties

The Greek Government seeks the annulment of the Decision in so far as it relates to export refunds for animal feed and to aids for the production of olive oil, and the condemnation of the Commission to pay the costs of the action, both of which claims are resisted by the Commission. The chief contentions of the Greek Government are summarized immediately below. Their detailed arguments, and the counterarguments of the Commission (which, regrettably, do not address all points), are set out, where necessary, in the analysis which follows.

I — Animal feed

The Greek Government seeks the annulment of the Decision in so far as it relates to the Government's expenditures on animal feed, on the basis of alleged errors of facts and of law, and of abuse of powers on the part of the Commission. In particular, it alleges the following:

(i)that the Commission wrongly took into account information which came to light only after the accounts should have been cleared (that is, after 31 December 1991);

(ii)that the Commission failed to indicate in a concrete fashion the links between KYDEP and feed exports, and the level of prices which would have obtained in the absence of the alleged intervention by KYDEP;

(iii)that the Greek State had ceased to have any privileged relationship with KYDEP by the relevant period, which is proved by its liquidation without having recourse to the State to pay its accumulated debts. Any impression on the part of KYDEP's management that such a relationship persisted was erroneous;

(iv)that the Commission's reasoning is defective in so far as it refused payment of the entire amount of the export refund expenditure claimed.

II — Aids for the production of olive oil

The Greek Government seeks the annulment of the Decision in so far as it relates to its expenditures on aids for the production of olive oil, on the basis of the breach of applicable Community law, insufficient reasoning, errors of fact or in the application of accounting rules, and violation of the principle of legal certainty. In particular, it alleges the following:

(i)that the withholding of an arbitrary proportion of expenses is not provided for in the relevant legislation;

(ii)that the Commission failed to indicate the losses which would have been avoided if producers had been subject to proper inspection, or if the production register or computerized files had been fully in place;

(iii)that the failure to put in place the register in time was due to objective impossibility, which was the subject of ongoing correspondence and collaboration with the Commission, and that the delay in respect of the computerized files was partial only;

(iv)that the deficient number of checks by the control agency was compensated for by checks by the local departmental directorates of the Ministry of Agriculture;

(v)that the control agency is a Community rather than a national body, whose failures cannot be attributed to the Greek State.

Analysis

I shall first make some preliminary remarks about the burden of proof in cases where a Member State seeks the annulment of a Commission decision relating to the clearance of EAGGF accounts. This burden was defined by the Court in Netherlands v Commission:

‘The Commission is required, not to demonstrate exhaustively that the information submitted by the Member States is irregular, but to adduce evidence of its serious and reasonable doubt concerning the figures submitted by the national authorities. The reason for this mitigation of the burden of proof on the Commission is that ... it is the State which is best placed to collect and verify the information required for the clearance of the EAGGF accounts; consequently it is for the State to adduce the most detailed and comprehensive evidence that its figures are accurate and, if appropriate, that the Commission's calculations are incorrect.’

16.It follows that the Commission is entitled to draw reasonable inferences from the information available to it, provided by the Member States or acquired as a result of its own investigations. The Court will not annul a Commission decision withholding reimbursement of claimed expenditures on the basis of the contrary assertion of a Member State, or even on the strength of doubts raised by the evidence adduced by a Member State. The aggrieved Member State must, pursuant to the principle actori incumba probation (35) prove with at least a reasonable degree of certainty (36) that the Commission has erred.

I — Animal feed

(i) Information received after 31 December 1991

17.The Commission based its findings on the continuing relationship between KYDEP and the Greek State on information acquired during an inspection visit to KYDEP's offices and to the Greek Ministry of Agriculture from 1 to 4 June 1992. The Commission indicated in its pleadings that such visits were permitted by the Greek authorities only after 14 May 1991; the refusal of such permission, despite the Commission's rights of inspection, had up to that point been a major element in the refusal to reimburse various expenditures undertaken by KYDEP. The Director-General of KYDEP stated in an interview with the Commission inspectors that the Greek State had not intervened in the animal feed market after 1988; however, as no formal document had been received by KYDEP to confirm this change in policy, it had continued its practice of below-cost selling, and had inevitably accumulated further deficits as a result. A letter of 9 November 1990 from the Ministry to KYDEP, which is discussed further below, led to the termination of this practice on 16 November 1990, after the end of the 1990 EAGGF financial year.

18.As was stated above, Article 5(2)(b) of Regulation No 729/70 (37) provides for Member States' Guarantee Section accounts to be cleared, on the basis of documents provided by them, before the end of the year following the financial year in question. However, it has been found since the 1970s to be impossible to clear the accounts in the time specified, largely because of the need to verify the information provided. The Court has made clear that evidence acquired by the Commission after the nominal clearance deadline should not normally be excluded from consideration:

‘Since the national authorities are responsible for verifying whether the conditions imposed by Community law for the incurring of expenditure are fulfilled, any supervision undertaken by the Commission can only be by way of spot checks. Since such intermittent supervision is inherent in the system, it is possible that irregularities may be discovered long after the events giving rise to them occurred. Until the accounts have been duly cleared, the Commission is required by Article 2 of Regulation No 729/70 to refuse to charge to the EAGGF refunds which have not been granted in accordance with the Community rules. That obligation does not disappear merely because the accounts are cleared after the expiry of the period prescribed in Article 5 of the abovementioned regulation. No penalty is imposed for failure to comply with that time-limit, which may therefore be regarded, having regard to the nature of the decision on the clearance of the accounts, the essential purpose of which is to ensure that expenditure incurred by the national authorities is in accordance with the Community rules, as a merely formal limit, save where the interests of a Member State are affected.’ (38)

19.In the light of this general statement of the law, and of the denial to the Commission of access to KYDEP before mid-1991, I would reject the Greek Government's argument that the Commission was not entitled to take into consideration the evidence acquired during its 1992 inspection.

(ii) Failure to indicate the effect of KYDEP's action

20.The Greek Government argues that the Decision does not contain a sufficient statement of reasons, as the Commission should have demonstrated: (a) the link between KYDEP's policy and animal feed exports; (b) the likely level of animal feed prices in the absence of such intervention; and (c) the likely level of export refund expenditure in the absence of such intervention. However, the Court has been unsympathetic to such arguments in its case-law. In United Kingdom v Commission, the Court stated that ‘decisions concerning the clearance of accounts do not require detailed reasons if the government concerned was closely involved in the process by which the decision came about and is therefore aware of the reason for which the Commission considers that it must not charge the sums in dispute to the EAGGF.’ (39)

21.Firstly, the long line of cases concerning the impact of KYDEP's activities on the annual accounts submitted by the Greek Government go all the way back to the date of accession of the Hellenic Republic to the Community. The repeatedly expressed concerns of the Commission and the judgments of the Court concerning the essentially unchanged nature of KYDEP's behaviour demonstrate clearly that the Greek Government should and must have been aware of their implications for future years. Secondly, it is evident that the Commission discussed its findings with the Greek authorities, as the Summary Report shows that they requested a positive reserve, which was refused. The Commission sets out in its report on the inspection visit of 1 to 4 June 1992 data on the deficits incurred by KYDEP on its transactions in animal feed, including KYDEP's administrative and other costs, which leave no doubt that it was engaged in below-cost selling.

22.As regards the relationship between this below-cost selling and Greek expenditure on export refunds of animal feed, the Commission indicates that the deficits incurred by KYDEP were much higher than the amounts declared to the EAGGF for export refunds. The Commission concludes that Greek animal feed could not have been exported to third countries, even with the benefit of Community export aids, without KYDEP's additional intervention. The Court has indicated, also in United Kingdom v Commission, that it is for the Member State to vindicate its position in such circumstances:

‘[W] hen the Commission refuses to charge certain expenditure to the EAGGF on the ground that it was incurred as a result of breaches of Community rules imputable to a Member State, it is for that State to show that the conditions for obtaining the financing refused by the Commission are fulfilled.’ (40)

23.In the context of the present case, once it is established that KYDEP was intervening in the animal feed market by artificially lowering prices, it is for the Greek Government to seek to demonstrate, by reference to the price which would have obtained in the absence of such intervention, that this did not affect the level of exports and, thus, the level of export refund expenditure. The Greek Government did not expressly attempt to do so. It did, however, comply with the Court's request at the oral hearing, though not within the time agreed, to provide copies of two confidential official documents, (41) discussed further below, one of which is relevant to this question. In the absence of any explanation of these documents from the Greek Government or even, due to their tardy arrival, of any opportunity to address questions to the parties about them, I am driven to interpret their significance on my own initiative. One document, a decision of 27 August 1990, contains references to several earlier decisions which have not been produced, all of which adds to the burden already imposed on the Greek Government to explain in unambiguous terms the nature, extent and purpose of its market interventions through KYDEP. This decision specified the prices to be charged by KYDEP from 1 September 1990 for the sale of certain forage cereals either directly to Greek farmers, or to undertakings which manufactured animal feed, in respect of feed destined exclusively for the Greek market. It is obvious from the prices specified, of which the Commission was aware, and from the Commission's account of the purchase prices of cereals and of KYDEP's management and other costs, that this decision inevitably entailed sales at a loss by KYDEP. (42) However, the decision purports to establish a different regime for the sale of cereals to manufacturers of animal feed, in respect of feed destined for export markets. KYDEP was to make such sales at cost price, account being taken of its own management, transport and other costs.

24.It appears that this decision was intended by the Greek authorities to segregate the export of animal feed, probably to ensure formal compliance with the requirements for export refunds (43) while continuing to intervene massively on the domestic market for animal feed. However, I do not think that this in any way undermines the Commission's decision. Indeed, the new document tends, if anything, to support it. First of all, details of this policy decision were withheld from the Commission (presumably because it confirms the State's role in directing KYDEP's below-cost sales on the domestic market), so that the Commission could not have been aware of the attempt to sanitize KYDEP's export activities.

25.Secondly, the Greek Government has offered no evidence to indicate that such a distinction between the domestic and export markets was attempted before 1 September 1990, and I would infer, therefore, that the decision of 27 August 1990 was, in this respect, innovative. Thus, whatever the merits of the policy inaugurated by that decision, the Commission was correct to conclude, as regards the preceding eight-and-a-half months of the 1990 financial year, that KYDEP's policy of below-cost sales directly affected the export refund regime.

26.Thirdly, the evidence available does not show that the decision of 27 August 1990 cured Greece's animal feed exports of the defects which led the Commission to withhold reimbursement of export refund expenditure. No indication has been given of any measures adopted to ensure that cereals sold below-cost to animal feed producers for the domestic market were not diverted for export. It is not clear whether rules were put in place to prevent cross-subsidization of producers' export sales by their subsidized domestic activities. More generally, the aid given to Greek animal feed producers in respect of their domestic sales may have enabled them to survive, in circumstances in which other Community producers would otherwise have had a competitive advantage over them, so that their continued ability to export and to avail of export refunds may have been contingent on that domestic support. These are all, of course, familiar problems arising from the segmentation of markets. I would add that, quite apart from the manifest illegality of the aid accorded by the Greek authorities in respect of the domestic market, any attempt to prevent the export of subsidized animal feed products (which, as we have seen, would be essential to ensure that the domestic and export markets remained distinct) would be contrary to Community rules prohibiting restrictions on exports.

27.In my view, even though the Commission was denied much relevant information about the policy of the Greek authorities, its conclusion that KYDEP's policy of below-cost sales of cereals had a detrimental effect on the export refund regime was clearly correct.

(iii) KYDEP's relationship with the Greek State

The Greek Government argues that it had no links with KYDEP, such as those identified in the earlier case-law, during the relevant period. If the management of KYDEP believed that the Greek State would continue to underwrite the deficits incurred by below-cost selling, it was mistaken. This is shown by the fact that KYDEP was put into liquidation in 1993, and that it has not had recourse to one of the two possible procedures for the recovery of debts from the State, as would have been the case had the State guaranteed its losses.

28.It is undisputed that KYDEP was engaged in below-cost selling of animal feed during the period in question. As has already been pointed out, the Director-General of KYDEP stated to the Commission that the Greek State had ceased to intervene in the animal feed market after 1987. The Greek Government also introduced in evidence a letter of 24 January 1991, from KYDEP to the Minister for Agriculture, acknowledging that no monies had been received for suet interventions since 1988. However, no official document had terminated the previous arrangement, and KYDEP continued the previous intervention practices. In the light of this fact, the Commission was entitled to suspect that the Greek Government continued to control KYDEP's operations in an informal way, without a formal guarantee being provided.

29.The eventual liquidation of KYDEP in 1993 at the behest of the Agricultural Bank of Greece does nothing to controvert the Commission's view about its activities in 1990. Furthermore, as the assets of KYDEP were not even remotely sufficient to cover its losses, the writing-off of its debts to a State-owned bank would have the effect of the State absorbing those costs of its extensive market interventions — ultimately the same effect as a direct State budget-line to KYDEP, or as a State guarantee for KYDEP's loans from a State bank.

30.There is, in any event, direct evidence of State involvement in KYDEP's activities. The first item is a law passed by the Greek Parliament in February 1992, of which Article 32 envisages the payment of large sums by the State to the cooperative organizations responsible for certain agricultural products, including animal feed, in respect of a number of years' activities up to and including 1989. This law therefore concerns all of the EAGGF 1989 financial year (for which the animal feed negative reserve was made definitive in the 1990 clearance decision); if it operates on the basis of calendar years, it also affects part of the 1990 financial year, which began on 16 October 1989.

31.The Greek Government, in a letter to the Commission of 25 September 1992, argued that this legislative provision for the State to take responsibility for certain of KYDEP's debts should be interpreted as being subject to the condition that KYDEP be judged to be viable. However, I do not see how the dependence of this State aid on the contingency of KYDEP's ultimate viability deprives it of its character as an aid to KYDEP's policy of below-cost sales. The availability of the aid would, after all, be an important factor in KYDEP's chances of survival despite its pursuit of an otherwise economically foolhardy policy on the cereals market.

32.The Commission report on its inspection visit to KYDEP from 1 to 4 June 1992 also mentions a letter from the Greek Minister for Agriculture to KYDEP which led to it ceasing its interventions on the market from 16 November 1990. A copy of this letter was introduced in evidence by the Greek Government, before the oral hearing, pursuant to a request from the Court. In the letter, dated 9 November 1990, the Minister informed KYDEP of the partial abrogation by the National Bank of Greece of two of its decisions, of 27 August 1990 and 26 July 1990. The first-mentioned concerned sale prices for cereals imposed by the National Bank of Greece, which were to be replaced by free (i.e. market) prices. The second ended the practice of covering KYDEP's deficits arising from the importation of cereals (and, implicitly, from their subsequent sale below-cost).

33.In response to a request from the Court at the oral hearing, the agent for the Greek Government stated that it would produce the texts of the earlier National Bank of Greece decisions within three weeks of the hearing. These were finally produced a week after the expiry of this period. As I have already indicated, they are described as decisions of the Commission on Prices and Incomes rather than of the National Bank of Greece, but are, in any event, clearly decisions of a State body. I have already outlined the content of the decision of 27 August 1990, which makes quite clear that the State dictated KYDEP's policy of below-cost sales of feed cereals on the Greek domestic market in the period after 1 September 1990. Furthermore, the decision establishes that KYDEP was not liable, for a period of six months after the date of the decision, to pay interest on its borrowings to fund cereal purchases and entrusts to the Minister for Agriculture the power to take further measures in order to implement the decision.

34.The other decision, of 26 July 1990, expressly provides for the coverage by the Ministry of Agriculture of KYDEP's debts arising from the import of feed cereals to meet the needs of the Greek market between 1 June 1990 and 31 December 1990, up to a maximum of DR 2400000, and empowers the Minister to take further measures to implement the decision.

35.Even if this proof of the Greek State's intervention relates to less than four months of market activity, its combination with the law of 1992 mentioned above, and with the continuation by KYDEP throughout the period in question of its practice of below-cost selling, is sufficient to justify the Commission's conclusion that KYDEP remained dependent on the Greek State, and that it acted for the Greek State when it intervened on the market in animal feed.

36.The Greek Government argues that the Commission should not have withheld payment of the entire amount of the export refund expenditure claimed. In effect, it contends that it should have been reimbursed that amount of the standard export refund which had to be paid out by the Government in order to reconcile (below-cost) Greek animal feed prices with (lower) prices on world markets; the Commission should have excluded only that portion of the standard export refund which, if paid, would have contributed to financing the cost of KYDEP's below-cost sales.

37.The Commission's position on this point is set out in its report on its inspection visit of 1 to 4 June 1992, and is substantially similar to that summarized as follows in the Report for the Hearing in Greece v Commission: [T] he Commission considers that for feed grain, which is characterized by elasticity of demand entailed by its very high price, the impact of that very considerable lowering of the cost price of the feedingstuffs [as a result of KYDEP intervention] is such that in a normal situation, without any national aid, that is to say at an appreciably higher price, those products could not have been exported. It is clear, however, from the statement of expenditure submitted by the Hellenic Republic that Greece is a major exporter of compound feedingstuffs. Since the financial burden created by these exportations arises exclusively out of that intervention in the cost of the product, the Fund cannot be responsible for the refunds granted ... for such feedingstuffs.

38.The Court endorsed the Commission's approach in that case. It follows that reimbursement of export refund payments should be entirely withheld in situations where national aid enables otherwise uncompetitive agricultural products to pass the price threshold which divides products which can compete (with the aid of Community export refunds) on world markets from those which cannot. While the direct connection between KYDEP's below-cost sales and Greek exports of animal feed may have been attenuated after 1 September 1990 (on the unsubstantiated assumption that the Greek decision of 27 August 1990 was effective in separating the domestic and export markets), the indirect competitive advantages derived by Greek animal feed producers from the subsidized domestic market mean that, even during this period, the Commission was entitled to conclude that they were assisted by the Greek State in passing the requisite price threshold. The Greek Government's argument to the contrary should therefore be rejected.

II — Aids for the production of olive oil

(i) Power to make a flat-rate adjustment

39.The Greek Government argues that no provision is made in Community legislation for the deduction of arbitrarily chosen sums from the amounts claimed by Member States for reimbursement from the Fund. The Commission responds that the entire amount claimed can be withheld where expenditures were undertaken otherwise than in conformity with Community law. The deduction of only a proportion of the amount claimed, corresponding to an assessment of the risk to the Fund, constitutes an attempt to avoid penalizing Member States excessively for defective supervision on their part.

40.The Commission's argument is, in my view, supported by the text of Articles 2(1) and 3(1) of Regulation No 729/70, outlined above, and by the consistent case-law of the Court. In United Kingdom v Commission, the Court stated that ‘where it proves impossible to establish with certainty the extent to which a national measure that is incompatible with Community law has caused an increase in the expenditure under a budgetary item of the EAGGF, the Commission has no choice but to disallow all the expenditure in question’. Having stated that it is for the Member State concerned to show that the conditions for obtaining the financing refused by the Commission are fulfilled, the Court continued: ‘The same considerations apply where, as in this case, the Commission, instead of rejecting all the expenditure affected by the infringement, has endeavoured to establish the financial impact of the unlawful action by means of calculations based on an assessment of what the situation on the relevant market would have been if the infringement had not occurred. In such a case, the burden of proving that those calculations are not correct rests on the State seeking to have the disallowance annulled.’

41.The mode of calculation employed by the Commission in that case was more precise than that at issue here, which was developed for situations in which the lack of effective controls, and the consequent absence of reliable data, precludes detailed calculations of risk. None the less, the same principle is applicable: where the Commission seeks to quantify, by whatever means, the actual or likely loss to the Fund caused by a breach of Community rules, the Member State concerned bears the burden of showing that its assessment is incorrect. There is no objection in principle to the Commission seeking, with greater or lesser exactitude, to quantify such losses.

42.The practice of making flat-rate or across-the-board adjustments is not new. It has been followed by the Commission for many years, and has received tacit approval from the Court. In Italy v Commission, (53) for example, the Court implicitly treated as legitimate a decision by the Commission to make a flat-rate adjustment of 2% to the expenditure on aids for processing of skimmed-milk powder into animal feed, as the Italian authorities had omitted to supply evidence as to the percentage of actual waste of skimmed-milk powder in the manufacturing process. In another case, Italy v Commission, (54) the Court discussed without objection a flat-rate reduction of 5% in the amount reimbursed in respect of an EAGGF budgetary item; and in Ireland v Commission (55) the Court implicitly accepted the possibility of a 2% deduction from the relevant expenditures. It does not appear that the deduction of a broad percentage figure has been expressly challenged. After all, the percentages used are a modest penalty for Member States when compared to the ultimate sanction of disallowing all of the expenditure in question. The work of the Commission's inter-service group was, in my view, a balanced and fair attempt to adopt criteria which represent the extent to which Community funds are put at risk by the failures of Member States to apply Community rules.

43.The Greek Government argues that the Commission failed properly to quantify the losses which ensued from the failure to institute a proper system of supervision in the field of olive oil production. It follows from the absence of such a system, of registers, computerized files and regular checks, that the Commission did not possess reliable data from which to calculate with exactitude the likely level of losses. The proposals of the Commission's inter-service group, summarized above, cater for such an eventuality, and the criteria which they took into account in developing them have not, in themselves, been criticized. Therefore, if the Greek Government fails to establish that the published criteria for a 10% deduction were not satisfied, the statement of reasons of the Decision should be deemed to be sufficient.

44.These grounds are best discussed together: as has already been outlined, the Commission justifies the 10% deduction from the amounts claimed as reimbursement in respect of aids to olive oil production by reference to defects in the whole system of supervision, or in those essential elements which are designed to ensure regularity of expenditure. Such defects must be such as to involve a serious risk of generalized losses to the Fund. The Greek Government argues that the obstacles encountered in preparing the register of olive cultivation were such that it was objectively impossible to fulfil the requirements set out in Regulation No 154/75. (56) It submits that the computerized files on olive cultivation were partially complete, and were used by the State aid-awarding agency DIDAGEP. It also argues that the deficient number of checks by the control agency was compensated for by an adequate number of checks (1534) by the departmental directorates of the Ministry of Agriculture.

45.As regards the register of olive cultivation, the Greek Government submitted to the Commission for approval, by a letter dated 28 December 1988 (three days before the expiry of the implementation period), a programme of tests for the establishment of the register. There ensued a correspondence between the Greek Government and the Commission about the means by which these problems could be resolved, which resulted in the Commission proposing, on 21 June 1991, an initial pilot programme, for which tenders were sought on 22 April 1992. (57) The Commission contends that, while it sought to assist in preparing the register, the Greek Government had no realistic plan to this effect during the relevant period, and was negligent in its approach to the project. The Greek Government has not indicated, in a concrete fashion, the nature of the purportedly insurmountable obstacles which it faced in establishing the register. In any event, the fact that the Commission sought to assist it in its tardy efforts to comply with its obligations does not mean that the Commission implicitly accepted that the non-compliance was excusable, or that the Court is constrained to make such a finding.

46.As regards the checks undertaken by the control agency in respect of organized producers, it is evident that the 1534 checks performed by the departmental directorates of the Ministry of Agriculture are irrelevant. These relate to independent producers and, while they may satisfy the requirement under Article 10(2) of Commission Regulation (EEC) No 3061/84, (58) as amended, of a 4% level of checks by the Member State concerned, in cases where the register of olive cultivation is not in place, they can have no bearing on the adequacy of the supervision of applications by organized producers. Thus, the Greek Government has adduced no evidence to cast doubt on the grounds for the Commission's decision in this regard: the inadequacy of the purely documentary checks of 5% of aid applications on the part of the producer organizations (Article 6(1), Regulation No 2261/84; (59) Article 4(2), Regulation No 3061/84), and the inadequate number (499) of further checks performed by the State through the control agency (Article 14(1) and (2), Regulation No 2261/84).

47.The Greek Government claims that the computerized files were partially complete (47% completion for the 1990 financial year), that they were used by DIDAGEP, and that lacunae were remedied by supplementary checks by the departmental directorates of the Ministry of Agriculture. However, no evidence has been supplied to support the latter two contentions. The Commission's inspection team remarked that certain important regions did not feature at all in the files, and that the files, such as they were, could not be consulted by DIDAGEP staff. (60) We have already seen that the Commission found the level of checks undertaken to be inadequate in the case of organized olive-growers, and the Greek Government has not shown how the departmental directorates, which were responsible only for independent producers, could compensate either for this inadequacy, or for the non-operation of the computerized files in respect of organized producers.

48.There is one potential problem with the Commission's position on this point, which has not been raised by the Greek Government. Article 11 of Regulation No 3061/84, as amended, (61) provides for a deadline for the completion of the computerized files of 31 October 1990, which came after the end of the 1990 financial year on 15 October 1990. Is the Commission entitled to raise the purported breach of an obligation which has not ‘crystallized’? It is difficult to see how it could have taken action under Article 169 of the Treaty establishing the European Community to enforce the obligation before the expiry of the deadline, although it might be permitted to act before that time to enforce the dependent obligation to use, for checks, the data from such computerized files as are established. In any event, I would note that the Commission does not play the same role in clearing the EAGGF accounts as it does when acting to ensure compliance with Community law, under Articles 169 and 171(2) of the Treaty establishing the European Community, for example. In the former case, it does not enjoy the same discretion as in the latter, and must act to protect the Fund from likely losses due to noncompliance with Community rules. (62) Thus, the Commission was entitled to conclude that the failure of DIDAGEP to use such data as were available in computerized files, and the failure of the Greek State to have in place, as the deadline approached, a system of computerized files which would be complete by that date, indicated a further gap in the envisaged system of supervision.

49.It is ultimately the combination of factors relied upon which convinces me that the Commission's assessment should be upheld. The lethargic approach of the Greek authorities to on-the-spot checks, to the compilation of the register of olive cultivation and to the setting up of the computerized files, shows that problems existed at all levels of the system of supervision, to an extent which entitled the Commission to conclude that the demanding criteria for a 10% deduction from the expenditures claimed by the Greek Government in respect of aids to olive oil production had been satisfied. In the absence of any coherent system of control, it was reasonable for the Commission to conclude that the Fund was exposed to serious risk of generalized losses. The facts found by the Commission indicate non-compliance by the Greek Government with the general obligation, arising from Article 5 of the Treaty establishing the European Community and from Regulation No 729/70 (63) as well as from the more detailed prescriptions of Community legislation in respect of olive oil production, to develop a coherent system of supervision. (64)

50.The Greek Government argues that the control agency is a Community rather than a national body, whose failures cannot be attributed to the Greek State.

51.The Member States have primary responsibility for the implementation of the common organization of agricultural markets, and for necessary supervision thereof. This is evident from the scheme of Regulation No 729/70, (65) and has been restated by the Court on a number of occasions. For example, in Denmark v Commission, the Court stated:

66‘[I] t should be pointed out that the management of EAGGF finances is principally in the hands of the national administrative authorities responsible for ensuring that the Community rules are strictly observed. That system, based on trust, does not involve any systematic supervision by the Commission, which moreover would in practice be impossible for it to carry out.’

In the particular case of olive production, it is clear that the control agency performs functions which are attributed to the Member States by the relevant legislation. Furthermore, it appears from the Commission's report on its inspection visit to DIDAGEP and to the control agency for the 1990 financial year that the control agency was established by a Greek presidential decree of 1987, that it is responsible to the Greek Ministry of Agriculture, and that its employees have the status of Greek public servants.

It is therefore evident from the legal and factual context that the control agency must be considered to be an organ of the Greek State, and that responsibility for its failures is attributable to the State.

Conclusion

53.In the light of the foregoing, the contentions of the Hellenic Republic that the Decision challenged in the instant case is void should all be rejected. I conclude, therefore, that Commission Decision 93/659/EC of 25 November 1993 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1990 of the EAGGF, Guarantee Section should not be annulled, in so far as it concerns the Hellenic Republic.

54.The costs of these proceedings should be borne by the Hellenic Republic.

*1 Original language: English.

1 OJ 1993 L 301, p. 13.

2 Case C-56/91 Greece v Commission [1993] ECR I-3433, paragraph 2 of his Opinion.

3 OJ, English Special Edition 1970 (I), p. 218.

4 Article 2(1).

5 Article 3(1).

6 Case 11/76 [1979] ECR 245, paragraphs 8 and 9 of the judgment.

7 COM(92)PV 1116.

8 The guidelines were submitted to the Commission for approval on 1 June 1993.

9 The guidelines deal with reductions of the sums claimed as reimbursement of Member State expenditure; such adjustments will sometimes be referred to as flat-rate reductions in the text which follows.

10 OJ 1975 L 281, p. 1.

11 Sec Article 1 and Annex A to the Regulation.

12 Article 16(2) of the Regulation.

13 Second recital in the preamble to Council Regulation (EEC) No 2746/75 of 29 October 1975, laying down general rules for granting export refunds on cereals and criteria for fixing the amount of such refunds; OJ, English Special Edition 1965-66 (I), p. 221. This case concerns only the production of olives, and not that of olive oil as such. The terms ‘producer’ and ‘grower’ arc used interchangeably in the text to refer to persons engaged in the production of olives, rather than of olive oil.

14 Council Regulation (EEC) No 154/75 of 21 January 1975 on the establishment of a register of olive cultivation in the Member States producing olive oil; OJ 1975 L 19, p. 1.

15 Council Regulation (EEC) No 3453/80 of 22 December 1980 amending Council Regulation (EEC) No 154/75 on the establishment of a register of olive cultivation in the Member States producing olive oil; OJ 1980 L 360, p. 15.

16 Article 6(1), Council Regulation (EEC) No 2261/84 of 17 July 1984, laying down general rules on the granting of aid for the production of olive oil and of aid to olive oil producer organizations; OJ 1984 L 208, p. 3; elaborated by Article 4(2), Commission Regulation (EEC) 3061/84, of 31 October 1984, laying down detailed rules for the application of the system of production aid for olive oil; OJ 1984 L 288, p. 52.

17 Article 14(4), Regulation No 2261/84; elaborated by Article 10(2), Regulation No 3061/84, as amended by Article 1(5), Commission Regulation (EEC) No 98/89 of 17 January 1989; OJ 1989 L 14, p. 14. The requirement was formerly 5% across the board.

18 Article 11(1), Regulation No 3061/84, as amended by Article 1(7), Regulation No 98/89.

19 Case C-35/88, paragraphs 33 and 37 of the judgment.

20 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

21 Case C-35/88, paragraphs 33 and 37 of the judgment.

22 Case C-32/89, paragraphs 8 to 18.

23 Case C-35/88, paragraphs 33 and 37 of the judgment.

24 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

25 Case C-35/88, paragraphs 33 and 37 of the judgment.

26 Case C-32/89, paragraphs 8 to 18.

27 Case C-35/88, paragraphs 33 and 37 of the judgment.

28 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

29 Case C-35/88, paragraphs 33 and 37 of the judgment.

30 Case C-32/89, paragraphs 8 to 18.

31 Case C-35/88, paragraphs 33 and 37 of the judgment.

32 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

33 Case C-35/88, paragraphs 33 and 37 of the judgment.

34 Case C-32/89, paragraphs 8 to 18.

35 Case C-35/88, paragraphs 33 and 37 of the judgment.

36 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

37 Case C-35/88, paragraphs 33 and 37 of the judgment.

38 Case C-32/89, paragraphs 8 to 18.

39 Case C-35/88, paragraphs 33 and 37 of the judgment.

40 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

41 Case C-35/88, paragraphs 33 and 37 of the judgment.

42 Case C-32/89, paragraphs 8 to 18.

43 Case C-35/88, paragraphs 33 and 37 of the judgment.

44 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

45 Case C-35/88, paragraphs 33 and 37 of the judgment.

46 Case C-32/89, paragraphs 8 to 18.

47 Case C-35/88, paragraphs 33 and 37 of the judgment.

48 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

49 Case C-35/88, paragraphs 33 and 37 of the judgment.

50 Case C-32/89, paragraphs 8 to 18.

51 Case C-35/88, paragraphs 33 and 37 of the judgment.

52 Case C-56/91 Greece v Commission, cited in foot-note 2 above, paragraphs 18 to 24 of the judgment; Case C-32/89, paragraphs 8 to 18.

53 Case C-35/88, paragraphs 33 and 37 of the judgment.

54 Case C-32/89, paragraphs 8 to 18.

(26) This information is drawn from the Report of a Commission inspection visit to DIDAGEP and the control agency, 4 to 8 November 1991, in respect of the 1990 financial year.

(27) Cited in footnote 1 above.

(28) Document VI/119/93.

(29) Paragraph 4.2.3.1, Summary Report.

(30) The deadline is erroneously indicated to be 31 October 1991, but this error, which is possibly only typographical, is not material.

(31) This statement appears to conflate two separate but related problems, which relate only to organized producers. The first concerns deficiencies in the on-the-spot checks required of the producer organizations (Article 6(1), Regulation No 2261/84, cited in footnote 23 above; Article 4(2), Regulation No 3061/84, cited in footnote 23 above), as it appears that they habitually regarded the 5% requirement as having been satisfied by the mere examination of documents. The second concerns deficiencies in the State's own system of checks (Article 14(1), Regulation No 2261/84), or in its verification of the checking operations of the producer organizations (Article 14(2), Regulation No 2261/84), with the control agency performing 499 of its own checks rather than the 2000 envisaged. These grave problems arc separately discussed in the Report of a Commission inspection visit to DIDAGEP and the control agency, 4 to 8 November 1991, in respect of the 1990 financial year.

(32) Paragraph 4.7.1.1, Summary Report.

(33) The Greek Government withdrew at the oral hearing a further claim for the annulment of the Decision in so far as it relates to tobacco, as the Decision imposed only a provisional negative reserve in respect of export refunds in the tobacco sector (paragraph 4.9.2.1, Summary Report).

(34) Case C-48/91 [1993] ECR I-5611, paragraph 17 of the judgment (provisional translation; the definitive translation will be published in the European Court Reports).

(35) This principle was cited by Advocate General Mischo in his Opinion in Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 18.

(36) Sec the Opinion of Advocate General Gand in Case C-8/65 Acciaierie e Ferriere Pugliesi v High Authority [1966] ECR 1, p. 12.

(37) Cited in footnote 3 above.

(38) Case C-349/85 Denmark v Commission [1988] ECR 169, paragraph 19 of the judgment.

(39) Case C-347/85 [1988] ECR 1749, paragraph 60 of the judgment; sec also Case C-1251/79 Italy v Commission [1981] ECR 205.

(40) Case 347/85, cited immediately above, paragraph 14 of the judgment.

(41) These arc variously described as being decisions of the Commission on Prices and Incomes (on their face) and of the National Bank of Greece (in the later decision partially revoking them). In any event, the direct references in those decisions to the role of the Minister for Agriculture, and the fact that it was that Minister who communicated their partial revocation to KYDEP, indicates their character as State action.

(42) This analysis is set out at p. 5 of the Commission's report on its inspection visit to KYDEP of 1 to 4 June 1992, mentioned above.

(43) This decision was taken during the course of the written procedure in Case C-32/89 Greece v Commission, cited in footnote 15 above, in which the Commission outlined its objections to the ‘topping up of export refunds with national subsidies; sec further the discussion in section I(iv) below.

(44) Law No 2008/1992.

(45) This is not made clear in the Commission report on the 1992 inspection visit to KYDEP in which the law is discussed.

(46) A copy of the letter in question was produced by the agent for the Greek Government at the oral hearing.

(47) The Greek Government had already sent a copy of this letter to the Commission, attached to its letter of 25 September 1992 mentioned above. The Commission did not introduce a copy of the letter in evidence, although it implicitly relied upon it in its written pleadings.

(48) Case C-32/89, cited in footnote 15 above, p. I-1326.

(49) Paragraph 18 of the judgment.

(50) Case 347/85, cited in footnote 39 above, paragraph 13 of the judgment.

(51) Paragraph 14 of the judgment, quoted at paragraph above.

(52) Paragraph 15 of the judgment.

(53) Case C-129/84 [1986] ECR 309, paragraphs 33 to 38 of the judgment.

(54) Case C-55/91 [1993] ECR I-4813, paragraphs 48 to 58 of the judgment.

(55) Case C-49/94 [1995] ECR I-2683, paragraph 22 of the judgment.

(56) Sec Case C-52/84 Commission v Belgium [1986] ECR 89.

(57) OJ 1992 C 100, p. 28.

(58) Cited in footnote 23 above.

(59) Cited in footnote 23 above.

(60) Report of a Commission inspection visit to DIDAGEP and the control agency, 4 to 8 November 1991, in respect of the 1990 financial year.

(61) See footnote 24 above.

(62) Joined Cases 15/76 and 16/76 France v Commission, cited in footnote 50 above, paragraphs 27 and 28 of the judgment.

(Cited in footnote 3 above.)

(On this general obligation, sec Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraphs 17, 20 to 21, 36 and 40 of the judgment.)

(Cited in footnote 3 above; sec in particular Article 8(1) of the Regulation.)

(Case 349/85, cited in footnote 38 above, paragraph 19 of the judgment; this passage immediately precedes that quoted in paragraph 18 above; see, to the same effect, Case C-48/91, cited in footnote 34 above, paragraph 11; and the Opinion of Advocate General Van Gerven in Case C-55/91 Italy v Commission, cited in footnote 54 above, paragraph 8.)