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URL: http://www.bailii.org/eu/cases/EUECJ/2003/C35500.html
Cite as: [2003] ECR I-5263, [2003] EUECJ C-355/, [2003] EUECJ C-355/00
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JUDGMENT OF THE COURT (Fifth Chamber)

22 May 2003 (1)

(Common agricultural policy - Free movement of goods - Freedom to provide services - State aid - Special contribution in favour of an agricultural insurance organisation)

In Case C-355/00,

REFERENCE to the Court under Article 234 EC by the Diikitiko Protodikio Thessalonikis (Greece) for a preliminary ruling in the proceedings pending before that court between

Freskot AE

and

Elliniko Dimosio,

on the interpretation of Articles 30 and 38 of the EC Treaty (now, after amendment, Articles 28 EC and 32 EC), Article 39 of the EC Treaty (now Article 33 EC), Articles 40 and 59 of the EC Treaty (now, after amendment, Articles 34 EC and 49 EC), Article 60 of the EC Treaty (now Article 50 EC) and Article 92 of the EC Treaty (now, after amendment, Article 87 EC), and First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3), as amended by Second Council Directive 88/357/EEC of 22 June 1988 (OJ 1988 L 172, p. 1),

THE COURT (Fifth Chamber),

composed of: M. Wathelet, President of the Chamber, C.W.A. Timmermans (Rapporteur), D.A.O. Edward, P. Jann and S. von Bahr, Judges,

Advocate General: C. Stix-Hackl,


Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Greek Government, by I. Chalkias and C. Tsiavou, acting as Agents,

- the Commission of the European Communities, by M. Condou-Durande and C. Tufvesson, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Greek Government and the Commission at the hearing on 7 March 2002,

after hearing the Opinion of the Advocate General at the sitting on 14 November 2002,

gives the following

Judgment

  1. By order of 31 July 2000, received at the Court on 26 September 2000, the Diikitiko Protodikio Thessalonikis (Administrative Court of First Instance, Thessaloniki) referred under Article 234 EC a question for a preliminary ruling on the interpretation of Articles 30 and 38 of the EC Treaty (now, after amendment, Articles 28 EC and 32 EC), Article 39 of the EC Treaty (now Article 33 EC), Articles 40 and 59 of the EC Treaty (now, after amendment, Articles 34 EC and49 EC), Article 60 of the EC Treaty (now Article 50 EC) and Article 92 of the EC Treaty (now, after amendment, Article 87 EC), and First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3), as amended by Second Council Directive 88/357/EEC of 22 June 1988 (OJ 1988 L 172, p. 1, 'Directive 73/239').

  2. That question was raised in proceedings between Freskot AE ('Freskot'), a poultry producer, and the Greek State for the recovery of the special insurance contribution due for the fourth quarter of 1993 and for 1994 in respect of purchases made by Freskot of poultry and vegetable products derived from Greek agriculture.

    The law

    Community law

  3. Article 1(1) of Directive 73/239 provides that:

    'This Directive concerns the taking-up and pursuit of the self-employed activity of direct insurance, including the provision of assistance referred to in paragraph 2, carried on by undertakings which are established in the territory of a Member State or which wish to become established there.'

  4. Article 2 of Directive 73/239 provides:

    'This Directive does not apply to:

    1. The following kinds of insurance:

    ...

    (d) Insurance forming part of a statutory system of social security;

    ...'.

    National law

  5. Law 1790/1988 concerning the organisation and operation of the Greek organisation for agricultural insurance, and other provisions (FEK A' 134, 'the 1988 Law') provides inter alia:

    'Article 1

    1. An organisation promoting the public interest called the Greek organisation for agricultural insurance (ELGA), a private legal person wholly owned by the State, is hereby established.

    2. The ELGA shall have its headquarters in Athens and be supervised by the Minister of Agriculture, in accordance with the provisions of this Law.

    Article 2

    1. The ELGA has the object of organising and implementing programmes of proactive protection and insuring the production and assets of agricultural enterprises.

    2. For the purposes of this Law insurance means the protection by insurance and the proactive protection of the agricultural production and vegetable, animal and real property assets of farmers and of plant, and buildings in their agricultural enterprises, ... from natural risks.

    ...

    Article 3

    1. More specifically, insurance with the ELGA shall include:

    (a) compulsory insurance against damage which is caused to production from systematic cultivation, to the vegetable, animal and real property assets of farmers, and to the buildings and plant of their agricultural enterprises.

    ...

    (b) proactive protection of vegetable assets and vegetable production.

    ...

    Article 4

    1. Natural or legal persons who own or operate agricultural, stock-breeding, poultry, apicultural, fishing, aquacultural or other related undertakings shall be subject to insurance under Article 3 ...

    ...

    Article 5

    The resources of the ELGA are:

    1.

    (a) income from a special insurance contribution ...

    ...

    2. All the detailed rules necessary for the application of this article shall be adopted by decision of the Minister of Agriculture.'

  6. Law No 2040/1992 determining the competence of the Ministry of Agriculture and legal entities charged with supervision, and other provisions (FEK A' 70) inserted Article 5a in the 1988 Law. That provision states as follows:

    '1. The following domestic agricultural products and by-products shall be subject to the special insurance contribution in favour of the ELGA:

    (a) products of vegetable or animal origin or originating from fishing;

    ...

    3. The special insurance contribution is set at 2% for products of vegetable origin and 0.5% for products of animal origin or originating from aquaculture or fishing. Those percentages shall be calculated on the basis of the value of the products.

    ...

    7. Subject to paragraphs 12 and 13 of this article, the special insurance contribution shall be paid to the competent tax authority by persons statutorily liable thereto within the time-limits laid down in Article 30(2) of the Tax Code.

    ...

    8. The persons liable to pay the special insurance contribution to [the competent tax authority] are, subject to paragraphs 12 and 13 of this article, those who, in accordance with the Tax Code, are obliged to issue purchase and sales invoices for agricultural products.

    ...

    14. The ELGA's income from the special insurance contribution levied by the tax authority shall be entered in the State budget as State income and shall appear under a dedicated heading for income. Such income shall be paidto the ELGA from the budget of the Ministry of Agriculture by a transfer of funds in the same amount each year following a proposal to that ministry by the ELGA.'

    The facts in the main proceedings and the question referred for a preliminary ruling

  7. Freskot, a limited company under Greek law having its principal place of business in Thessaloniki, has as the object of its business the production and sale of poultry intended for wholesale on the domestic market and the slaughter of poultry on behalf of third parties in return for payment.

  8. Whilst carrying out a check, an officer of the Dimosia Ekonomiki Iperisia (the tax authority) of Thessaloniki ascertained that, during the 1993 tax year, Freskot had purchased agricultural products both of animal (poultry) and vegetable origin subject to the special insurance contribution payable to ELGA under the 1988 Law ('the contribution'), but that in the fourth quarter of 1993 that company had not paid the contribution due in respect of those purchases.

  9. By an assessment for 1993 and 1994, dated 20 January 1997, the head of the Thessaloniki tax authority requested Freskot to pay the amount of the unpaid contribution for the fourth quarter of 1993, the unpaid contribution for 1994 and a surcharge for misdeclaration or failure to make a declaration for those tax years.

  10. Freskot applied to the Diikitiko Protodikio Thessalonikis for annulment of that assessment on the basis that the provisions of the 1988 Law upon the basis of which the contribution is levied are in direct conflict with primary and secondary Community law, in particular Article 30 of the Treaty, Articles 34 and 36 of the EC Treaty (now, after amendment, Articles 29 EC and 30 EC), Articles 38, 39, 40 and 59 of the Treaty, Articles 85, 86 and 90 of the EC Treaty (now Articles 81 EC, 82 EC and 86 EC) and Article 92 of the Treaty, as well as Directive 73/239.

  11. More particularly, Freskot submits that, in so far as it concerns poultry production, the contribution is contrary to the objectives of the common agricultural policy set out in Articles 38 and 39 of the Treaty and the relevant common organisation of the market. It submits that that contribution deprives Greek producers and sellers of poultry of the chance to sell freely, both within Greece and in other Member States, on the terms laid down by the applicable Community rules. It further considers that that contribution constitutes a measure having equivalent effect to a quantitative restriction prohibited by Article 30 of the Treaty because it has a detrimental effect on exports by Greek producers and favours producers outside Greece, both within the Community and in non-Member States. Finally, Freskot submits that the monopolistic system of compulsory insurance with ELGA, as established by the 1988 Law, is contrary to the principle of the freedom to provideservices and the legislative and administrative provisions relating to direct insurance.

  12. In those circumstances, the Diikitiko Protodikio Thessalonikis stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

    'Is the imposition of the insurance contribution referred to in the grounds of the judgment, to which domestic agricultural products and by-products of vegetable or animal origin or originating from fishing are subject, and which is levied and paid as income to the competent tax authority, given the objective which it pursues, namely organising and implementing programmes of proactive protection and insurance for the production and assets of agricultural holdings, contrary to the provisions of Community law concerning the free movement of goods (Article 28), the common agricultural policy (Articles 38, 39 and 40), the freedom to provide services (Articles 59 and 60), permitted State aid (Article 92) and the provisions of First Council Directive 73/239/EEC of 24 July 1973?'

    The question referred for a preliminary ruling

  13. By its question, the referring court asks essentially whether Community law on the common agricultural policy, the free movement of goods, the freedom to provide services and State aid precludes a quasi-fiscal charge established by a Member State, such as the contribution, which is levied on sales and purchases of domestic agricultural products and the revenue from which is used to fund a public body responsible for the prevention of, and compensation for, damage caused to agricultural holdings in that State by natural risks.

    The common agricultural policy

    Observations submitted to the Court

  14. The Greek Government and the Commission submit that the contribution, introduced as part of the compulsory insurance scheme which it is used to finance, is compatible both with the Treaty provisions on the common agricultural policy and with Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat (OJ 1975 L 282, p. 77), as amended by Council Regulation (EEC) No 1235/89 of 3 May 1989 (OJ 1989 L 128, p. 29, 'Regulation No 2777/75'), applicable to the agricultural products at issue in the main proceedings.

  15. The Greek Government and the Commission submit in particular in that regard that the contribution does not derogate from Regulation No 2777/75 since it does not include specific provisions on agricultural insurance against natural risks.

  16. According to the Greek Government the compulsory insurance scheme in question also has no significant effect on pricing levels or on the mechanisms established by that regulation having regard, in particular, to the negligible amount of the contribution. Such a scheme can have no effect on trade between Member States and even supports the operation of the common organisation of the market in question since it is in the interests of farmers.

  17. The Commission submits that there is no evidence in the file to support the conclusion that the contribution undermines the common organisation of the market established by Regulation No 2777/75. The contribution does not affect the mechanisms provided for by that regulation which are intended to adapt supply to the requirements of the market. Nor does it distort trade in poultrymeat between the Community and third countries. In particular, there is no evidence to suggest that, because of the imposition of the contribution, imported products are substituted for domestic products where purchasing decisions are made. However, if that were the case, the contribution would be contrary to the regulation. In any event, it is for the referring court to determine whether this is the case.

    Reply of the Court

  18. It is not in dispute that the agricultural products at issue in the main proceedings are covered by a common organisation of the market, namely that for poultrymeat, governed by Regulation No 2777/75.

  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-0000, paragraph 31, and Case C-462/01 Hammarsten [2003] ECR I-0000, 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).

  21. The common organisation of the market in poultrymeat is based on a set of measures designed to stabilise the market and ensure fair prices without recourse to intervention measures of the kind provided for in other agricultural markets.

  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.

  23. From the point of view of the requirements of the common organisation of the market in poultrymeat there can be no objection in principle to the compulsory insurance scheme at issue in the main proceedings, including the contribution.

  24. The purpose of that scheme, namely to protect agricultural holdings against natural risks, does not serve any of the specific objectives of that common organisation as set out at paragraphs 21 and 22 of the present judgment. However, the purpose of the national scheme is covered by the aims of the common agricultural policy to which Article 20 of Regulation No 2777/75 refers, in particular the aims set out in Article 39(1)(a) and (b) of the Treaty.

  25. Increasing productivity and ensuring a fair standard of living for the agricultural community, which are amongst the aims pursued by that Treaty article, imply, a fortiori, the aim pursued by the compulsory insurance scheme at issue in the main proceedings, consisting of the protection of agricultural holdings against natural risks which are of particular importance for them, above all because the availability of cover from insurance companies appears, at least to some extent, to be uncertain.

  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).

  28. It cannot be excluded that the financial charge which that contribution represents does have such an effect on intra-Community trade.

  29. That is because the advantage enjoyed by products originating in other Member States or in non-Member States over Greek products as a result of the fact that only the latter are subject to the contribution might, by reason of the increase in the price of Greek products alone, engender a certain degree of substitution of products originating in other Member States or of products imported from non-Member States for domestic products, both on the Greek market and on that of other Member States.

  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).

  32. The fact that the charge represented by the contribution is, at least to some extent, compensated for by the benefits granted by the ELGA in the event of damage under the compulsory insurance scheme and that, because of that, farmers do not have to obtain insurance against such risks from private insurers, in so far as such insurance is available, or to take other steps to protect themselves, also indicates that the contribution has a neutral effect on trade.

  33. In the light of the foregoing, the answer to the question referred as regards Community law on the common agricultural policy must be that:

    - the Treaty provisions on the common agricultural policy and Regulation No 2777/75 do not preclude a quasi-fiscal charge established by a Member State, such as a contribution levied on sales and purchases of domestic agricultural products which fall within the common organisation for the market in poultrymeat, the revenue from which is used to fund a public body responsible for the prevention of, and compensation for, damage caused to agricultural holdings by natural risks in that State;

    - those provisions and that regulation do preclude such a quasi-fiscal charge however where it is such as to undermine the aims and objects of thecommon organisation of the market in question and, in particular, where it does in fact restrict intra-Community trade;

    - it is for the national court to decide whether the contribution does in fact have that effect.

    The free movement of goods

    Observations submitted to the Court

  34. The Greek Government examines the compatibility of the contribution with the provisions on the free movement of goods laid down by Articles 9, 10, 12 and 95 of the EC Treaty (now, after amendment, Articles 23 EC, 24 EC, 25 EC and 90 EC).

  35. According to that government, the contribution cannot be described as a charge having equivalent effect to a customs duty within the meaning of Articles 9 and 12 of the Treaty since it does not apply to imports but is an integral part of a general system of internal taxes which are systematically charged under the same conditions on all domestic products.

  36. The contribution must therefore be assessed in the light of Article 95 of the Treaty. It is compatible with that provision in that, first, it does not apply to imports and therefore constitutes in that regard, at most, reverse discrimination not open to criticism and, second, it applies equally to sales of domestic products intended for export and to sales of those intended for the domestic market.

  37. The Commission submits that the contribution does not conflict with the Treaty provisions on the free movement of goods because it covers all domestic products but applies neither to imported products nor exclusively to exported products. It follows that it does not constitute an obstacle to trade between Member States even if it is potentially less favourable to domestic production than to that originating in other Member States.

    Reply of the Court

  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).

  40. It is not in dispute that the contribution applies only to domestic products and not to imported products. It is therefore necessary to determine, first, whether it amounts to a charge having equivalent effect to a customs duty on exports within the meaning of Articles 9, 12 and 16 of the Treaty. If not, it will then be necessary to consider whether the contribution constitutes a discriminatory internal taxation prohibited by Article 95 of the Treaty.

  41. The contribution cannot be classified as a charge having equivalent effect to a customs duty on exports within the meaning of Articles 9, 12 and 16 of the Treaty.

  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 intendedfor 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).

  48. In the light of the foregoing, the answer to the question must be that Community law on the free movement of goods, in particular Articles 9, 12, 16 and 95 of the Treaty does not preclude a quasi-fiscal charge such as the contribution.

    The freedom to provide services

    Observations submitted to the Court

  49. The Greek Government submits that the benefits provided by ELGA under the compulsory insurance scheme are not normally provided for remuneration within the meaning of Article 60 of the Treaty and do not, therefore, fall within the scope of the Treaty provisions on the freedom to provide services. They are in fact social security benefits primarily financed from public funds. Accordingly, the benefits also do not fall within the scope of Directive 73/239.

  50. The Commission submits that provision of the benefits does not have the technical characteristics of insurance business within the meaning of Directive 73/239 in particular. Furthermore, they are not economic in nature or for profit and therefore do not fall within the Treaty provisions on the freedom to provide services.

    Reply of the Court

  51. A preliminary point to be made is that the question referred with regard to the Treaty provisions on the freedom to provide services covers two aspects. First, whether the benefits provided by ELGA fall within the scope of Directive 73/239 and, second, whether the compulsory insurance scheme at issue in the mainproceedings constitutes a restriction of the freedom of insurers established in other Member States to provide services.

  52. As regards the first part of the question, it is necessary to determine whether the benefits provided by ELGA under the compulsory insurance scheme at issue in the main proceedings, in particular the payment of compensation in the event of damage caused by natural risks, do in fact fall within the scope of the freedom to provide services within the meaning of Articles 59 and 60 of the Treaty, in order to be able to determine whether those benefits fall within the scope of Directive 73/239.

  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).

  56. In the present case, it is clear that the payment of the contribution by the Greek farmers does not constitute economic consideration for the benefits provided by ELGA under the compulsory insurance scheme.

  57. The contribution is essentially in the nature of a charge imposed by the legislature and it is levied by the tax authority. The characteristics of that charge, including its rate, are also determined by the legislature. It is for the competent ministers to decide any variation of the rate.

  58. Similarly, the rate and detailed rules governing the benefits provided by ELGA under the compulsory insurance scheme are framed by the national legislature in such a way as to apply equally to all operators.

  59. Consequently, benefits such as those provided by ELGA under the compulsory insurance scheme cannot be classified as services within the meaning of Articles 59 and 60 of the Treaty.

  60. As a result they also do not fall within the scope of Directive 73/239, which, as regards the concept of services, is no wider than that of Articles 59 and 60 of the Treaty.

  61. Independently of the question whether the benefits provided by ELGA may be classified as 'services' within the meaning of those Treaty provisions, the second question is whether the implementation of the compulsory insurance scheme in which ELGA participates is, in itself, such as to constitute a restriction of the freedom of insurers, established in other Member States and wishing to offer their insurance services against the risks in question, or some of them, on the Greek market, to provide services.

  62. It is true that there appears to be some doubt, at least in respect of certain risks covered by the compulsory insurance scheme, whether these are insurable with private insurers since the profitability of such insurance business is uncertain. Moreover, the documents in the file sent to the Court appear to show that the national compulsory insurance scheme makes provision for minimum cover and that, therefore, the operators concerned are at liberty to enter into additional contracts of insurance with companies established both in Greece and in other Member States.

  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).

  64. Furthermore, it is useful to note in that context that, in the notice entitled 'Community Guidelines for State aid in the agriculture sector', published in the Official Journal of the European Communities of 1 February 2000 (OJ 2000 C 28, p. 2), the Commission stated that several Member States have set up aid schemes designed to encourage farmers to obtain insurance cover, schemes which imply that at least some of those risks are insurable, but that such aids constitute a restriction on the operation of the internal market for insurance services, particularly if the possibility of providing insurance cover is limited to a single company or group of companies or if a condition of the aid is that the insurance contract has to be taken out with a company established in the Member State concerned (see sections 11.5.1 and 11.5.3 of that notice).

  65. Therefore, it is necessary to examine whether such a restriction of the freedom to provide services can be justified under Community law.

  66. The compulsory insurance scheme at issue in the main proceedings essentially pursues an objective of social policy.

  67. Given that the rate of the contribution is fixed independently of the risk facing each farm and that, in general, the national legislature sets a uniform rate both for the contributions paid and the benefits granted, the scheme seeks to ensure an adequate level of cover for all agricultural holdings, including those at greater risk of damage from natural risks.

  68. As the Greek Government has pointed out, the social policy objective pursued by such a compulsory insurance scheme is further confirmed by its historic origins as a component of the general system of social security for farmers and by the fact that it covers in particular risks in respect of which it appears a priori uncertain whether insurance cover with private insurers is in fact available, even though it is particularly important that agricultural holdings are covered against such risks.

  69. In those circumstances, any restriction of the freedom to provide services which may ensue from the compulsory insurance scheme at issue in the main proceedings may be justified on the ground of overriding public interest relating to a social policy objective.

  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.

  71. However, as the Commission has rightly pointed out, it is necessary to examine whether the cover provided by the compulsory insurance scheme is proportionate. In particular, it is necessary to examine whether the financing of ELGA and, therefore, its primarily social objective would be compromised if Greek farmers were allowed to take out insurance policies with private insurers in respect of certain risks covered by the compulsory insurance scheme and were exempt from paying the contribution to a corresponding extent.

  72. However, the Court does not have sufficient information to be able to carry out such an investigation.

  73. In those circumstances, it is for the referring court to determine, on the basis of all the information available to it, whether the compulsory insurance scheme at issue in the main proceedings is proportionate in the light of the social objective of that scheme.

  74. In the light of the foregoing, the answer to the question referred must be that:

    - benefits such as those provided by ELGA under the compulsory insurance scheme against natural risks do not fall within the scope of either Articles 59 and 60 of the Treaty or Directive 73/239;

    - such a compulsory insurance scheme may, however, constitute a restriction on the freedom of insurance companies established in other Member States, who wish to offer services covering such risks in Greece, to provide services, within the meaning of those Treaty provisions. It is for the referring court to determine whether that scheme is in fact justified by social policy objectives and to examine, in particular, whether the cover provided by that compulsory insurance scheme is proportionate to those objectives.

    The Treaty provisions on State aid

    Observations submitted to the Court

  75. The Greek Government and the Commission submit essentially that ELGA cannot be classified as an undertaking for the purposes of the Treaty provisions relating to competition since the function delegated to it is based on the principle of national solidarity and does not constitute an economic activity.

    Reply of the Court

  76. In order to determine whether ELGA, as the recipient of the contribution, may be regarded as an 'undertaking' within the meaning of Article 92 of the Treaty it must be noted that the function allocated to that body under the compulsory insurance scheme at issue in the main proceedings is exercised in the context of the essentially social objective pursued by that scheme (see paragraphs 66 to 68 of the present judgment).

  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).

  78. As is apparent from paragraphs 56 to 58 of the present judgment, the benefits and the contribution, which are the two essential elements of that scheme, are set by the national legislature (see on that subject, inter alia, Cisal, cited above, paragraphs 43 and 44). The contribution is essentially in the nature of a charge imposed by the State. It is also the State which determines the characteristics of that charge, including the rate. Similarly, the nature and level of the benefits provided by ELGA are set by the national legislature.

  79. It follows that the insurance activity carried out by ELGA is not an economic activity within the meaning of the Treaty provisions on competition and that, inparticular, that body is not an undertaking within the meaning of Article 92 of the Treaty.

  80. However, the question arises, independently of whether the compulsory insurance scheme at issue in the main proceedings is compatible with the Treaty provisions on State aid as regards ELGA's activity as the recipient of the contribution, as to whether the benefits provided by that body to Greek agricultural holdings as compulsory insurance against natural risks may be classified as 'State aid' within the meaning of Article 92(1) of the Treaty.

  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).

  82. Consequently, it is necessary in the second place to answer the question whether, and if so to what extent, the ELGA compulsory insurance scheme constitutes an economic benefit for the operators covered thereunder.

  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).

  84. Accordingly, it is necessary to answer the question whether, and if so to what extent, in the absence of compulsory cover, Greek agricultural holdings should have, and indeed could have obtained insurance cover from private insurers or taken other steps in order adequately to protect themselves against the consequences of natural risks for their farms and, second, to what extent the contribution corresponds to the actual economic cost of the benefits provided by ELGA under the compulsory insurance scheme, if indeed such a cost can be calculated.

  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, assuch, 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).

  87. However, the Court is clearly not sufficiently apprised of the relevant points of fact and law needed in order to be able to answer the part of the question concerning the potential classification of the benefits granted by ELGA under the compulsory insurance scheme against natural risks as State aid, particularly in relation to the points referred to in paragraphs 82 and 85 of the present judgment. In those circumstances, no answer can be given to that part of the question.

  88. In the light of all the foregoing, the answer to the question referred must be that the term 'undertaking' within the meaning of Article 92 of the Treaty does not cover a body such as ELGA in respect of its activities under the compulsory insurance scheme against natural risks.

    Costs

    89. 89. The costs incurred by the Greek Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

    On those grounds,

    THE COURT (Fifth Chamber),

    in answer to the question referred to it by the Diikitiko Protodikio Thessalonikis by order of 31 July 2000, hereby rules:

    1. The EC Treaty provisions on the common agricultural policy and Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat, as amended by Council Regulation (EEC) No 1235/89 of 3 May 1989, do not preclude a quasi-fiscal charge established by a Member State, such as a special insurance contribution levied on sales and purchases of domestic agricultural products which fall within the common organisation for the market in poultrymeat, the revenue from which is used to fund a public body responsible for the prevention of, and compensation for, damage caused to agricultural holdings by natural risks in that State.

    Those Treaty provisions and Regulation No 2777/75, as amended by Regulation No 1235/89, do preclude such a quasi-fiscal charge howeverwhere it is such as to undermine the aims and objects of the common organisation of the market in question and, in particular, where it does in fact restrict intra-Community trade.

    It is for the national court to decide whether the contribution does in fact have that effect.

    2. Community law on the free movement of goods, in particular Articles 9 and 12 of the EC Treaty (now, after amendment, Articles 23 EC and 25 EC), Article 16 of the EC Treaty (repealed by the Treaty of Amsterdam) and Article 95 of the EC Treaty (now, after amendment, Article 90 EC), does not preclude a contribution such as that referred to in paragraph 1 of the operative part of the present judgment.

    3. Benefits such as those provided by the Organismos Ellenikon Georgikon Asfaliseon (ELGA) under the compulsory insurance scheme against natural risks do not fall within the scope of either Article 59 of the EC Treaty (now, after amendment, Article 49 EC) and Article 60 of the EC Treaty (now Article 50 EC) or First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as amended by Second Council Directive 88/357/EEC of 22 June 1988.

    Such a compulsory insurance scheme may, however, constitute a restriction on the freedom of insurance companies established in other Member States, who wish to offer services covering such risks in Greece, to provide services, within the meaning of those Treaty provisions. It is for the referring court to determine whether that scheme is in fact justified by social policy objectives and to examine, in particular, whether the cover provided by that compulsory insurance scheme is proportionate to those objectives.

    4. The term 'undertaking' within the meaning of Article 92 of the EC Treaty (now, after amendment, Article 87 EC) does not cover a body such as the Organismos Ellenikon Georgikon Asfaliseon (ELGA) in respect of its activities under the compulsory insurance scheme against natural risks.

    Wathelet
    Timmermans
    Edward

    Jannvon Bahr

    Delivered in open court in Luxembourg on 22 May 2003.

    R. Grass M. Wathelet

    Registrar President of the Fifth Chamber

    1: Language of the case: Greek.

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