ORDER OF THE PRESIDENT OF THE GENERAL COURT
19 September 2012 (*)
(Application for interim measures — State aid — Compensation payments made in 2008 and 2009 by the Greek Agricultural Insurance Organisation (ELGA) — Decision declaring the aid incompatible with the internal market and ordering its recovery — Application for suspension of operation of the decision — Prima facie case — Urgency — Weighing up of interests)
In Case T‑52/12 R,
Hellenic Republic, represented by I. Khalkias and S. Papaïoannou, acting as Agents,
applicant,
v
European Commission, represented by D. Triantafyllou and S. Thomas, acting as Agents,
defendant,
APPLICATION for suspension of the operation of Commission Decision 2012/157/EU of 7 December 2011 concerning compensation payments made by the Greek Agricultural Insurance Organisation (ELGA) in 2008 and 2009 (OJ 2012 L 78, p. 21),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought
1 The Greek Agricultural Insurance Organisation (ELGA), which was created by a law enacted in 1988, is wholly owned by the State and has the objective of insuring the crop and animal production and crop and animal assets of agricultural holdings against damage due to natural risks. Insurance with ELGA is compulsory and its revenue is derived essentially from a special insurance contribution — set at 3% for products of plant origin and at 0.5% for animal products — imposed on the agricultural producers who are members of the insurance scheme.
2 In 2009 the Greek Government provided for the payment by ELGA of compensation amounting to roughly EUR 425 million in order to respond to the complaints of a large number of Greek agricultural producers who had suffered revenue losses because the production of certain crops decreased in the years 2008 and 2009. This decrease was due to adverse weather conditions, such as drought, high temperatures and rainfall, and entomological and phytopathological diseases of the crops in question.
3 After being informed of those measures, the European Commission initiated the procedure provided for in Article 108(2) TFEU. That procedure led to the adoption, on 7 December 2011, of Decision 2012/157/EU concerning compensation payments made by ELGA in 2008 and 2009 (OJ 2012 L 78, p. 21; (‘the contested decision’), which classified certain compensation payments, amounting to roughly EUR 425 million, as unlawful State aid and incompatible with the internal market, and ordered their recovery from the beneficiaries.
4 In the contested decision, the Commission set a time-limit of four months from the date of notification of the decision for the Hellenic Republic to recover the abovementioned amount from the agricultural producers, together with interest calculated from the date on which payment was made until the date of recovery. That time-limit was subsequently extended by two months.
5 By application lodged at the Registry of the General Court on 8 February 2012, the Hellenic Republic brought an action for annulment of the contested decision.
6 By separate document, lodged at the Court Registry on 18 May 2012, the Hellenic Republic made the present application for interim measures, in which it claims, in essence, that the President of the Court should:
— suspend the operation of the contested decision until the General Court has delivered judgment on the main action;
— order the Commission to pay the costs.
7 In its observations lodged at the Court Registry on 30 May 2012, the Commission contends, in essence, that the President of the Court should:
— dismiss the application for interim measures;
— order the applicant to pay the costs.
8 On 18 June 2012, the President of the Court ordered in the interests of the good administration of justice, under Article 105(2) of the Rules of Procedure of the General Court, that operation of the contested decision be suspended in so far as it required the Hellenic Republic to recover the aid at issue, on the ground that the Hellenic Republic’s contentions, if established, justified maintaining the status quo in order to allow a detailed examination of the parties’ arguments.
9 On 11 September 2012, the parties put forward their arguments at a hearing and answered the oral questions asked by the President of the Court.
Law
10 It is apparent from Articles 278 TFEU and 279 TFEU in conjunction with Article 256(1) TFEU that the President of the Court may, if he considers that circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.
11 Article 104(2) of the Rules of Procedure provides that an application for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application may order the suspension of the operation of an act and other interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the interests of the party by whom it is sought, it must be made and produce its effects before a decision is reached on the main action (order in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 22). Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not satisfied (order in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30). Where appropriate, the judge hearing the application must also weigh up the interests involved (orders in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73, and in Case T‑198/01 R Technische Glaswerke Ilmenau v Commission [2002] ECR II‑2153, paragraph 50).
12 In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order in Commission v Atlantic Container Line and Others, paragraph 23, and order of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
Prima facie case
13 According to settled case-law, the condition relating to a prima facie case is satisfied where at least one of the pleas in law put forward by the applicant in support of the main action appears, prima facie, to be relevant and in any event not unfounded, in that it reveals the existence of a difficult legal issue the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out in the context of proceedings for interim measures but must be the subject of the main proceedings, with the result that the action is not prima facie without reasonable substance (see, to this effect, the orders in Case C‑39/03 P-R Commission v Artegodan and Others [2003] ECR I‑4485, paragraph 40; in Case T‑395/94 R Atlantic Container Line and Others v Commission [1995] ECR II‑595, paragraph 49; and of 30 April 2010 in Case T‑18/10 R Inuit Tapiriit Kanatami and Others v Parliament and Council, not published in the ECR, paragraph 95 and the case-law cited).
14 Here, the Hellenic Republic complains in the second and third pleas in law put forward in support of the action for annulment of the contested decision that the Commission infringed Article 107(1) TFEU by wrongly considering that the payments at issue ‘affect[ed] trade between Member States’ and ‘threaten[ed] to distort competition’, when the payments amounted, on average, to roughly EUR 500 only per farmer and they were all compensation for actual losses of agricultural production that resulted from causes not attributable to the producers. Compensation of such low value is not capable of conferring on Greek farmers a competitive advantage over producers from other Member States.
15 The Hellenic Republic adds that, whilst it is stated, in point 59 of the contested decision, that ‘the agricultural sector is open to competition at Union level and is consequently sensitive to any measure favouring production in a particular Member State’, there is nothing to indicate that the Commission took into consideration the characteristics of the market concerned and the economic situation of the recipient Greek farmers. The Commission merely refers to various judgments of the Court of Justice in which it has been acknowledged that the agricultural sector is in general sensitive to competition. However, in the present instance, the payments at issue, designed to compensate for actual losses suffered by the farmers, restored, rather than distorted, competition.
16 The Hellenic Republic further submits that the Commission erroneously included in the amount of the alleged State aid the sum of EUR 186 million corresponding to the contributions paid by farmers themselves in 2008 and 2009 under ELGA’s compulsory insurance scheme. That sum must be deducted from the amount of aid to be recovered.
17 The Commission states in response that the compensatory objective of the payments at issue is not material to their classification as State aid. With regard to the tests of distortion of competition and an effect on trade between Member States, it is settled case-law that there is no sensitivity threshold below which those conditions are not fulfilled inasmuch as the recipients of State aid engage in their activities on a market that is open to competition and hence sensitive to any measure favouring production in a particular Member State. As to the compulsory contributions that were paid by Greek farmers and fell under the control of the Greek State, the Commission considers that that sum, which it assesses as being EUR 145 million, is not to be deducted from the aid to be recovered since the fact that it was initially private in nature does not preclude the payments at issue from being classified in their entirety as State aid.
18 In its fourth plea for annulment, the Hellenic Republic states that the Commission misapplied Article 107(3)(b) TFEU and the discretion that is available to it in the area of State aid, since the payments at issue should have been regarded as compatible with the internal market because of the very serious disturbance in the entire Greek economy. That provision of primary law must be applied directly if the conditions that it lays down are met, which is the case here: the international financial and economic crisis which has been holding sway since 2008 has hit all sectors of the Greek economy extremely harshly and has caused a very serious financial crisis that has resulted, in particular, in a significant reduction of liquidity on the Greek market, a persistent recession for five years in succession and impoverishment of numerous categories of the population. The lack of liquidity from which the agricultural sector suffers is threatening to create systemic risks for the entire Greek economy, given that the latter is largely based on primary production: agricultural producers account for a significant proportion of the productive fabric of the Greek economy, such that their number, approximately 860 000 out of a total of almost 5 million, constitutes a significant percentage of the active population.
19 The Commission states in response that Article 107(3)(b) TFEU accords it a discretion for assessing whether State aid is compatible with the internal market, a discretion which it exercised by adopting the communication which lays down a temporary Community framework for State aid measures to support access to finance in the current financial and economic crisis (OJ 2009 C 83, p. 1). By subparagraph (h) of the third paragraph of point 4.2.2, that communication initially excluded undertakings active in the primary agricultural production sector because of the distortions of competition liable to arise in that sector even in the case of small amounts of aid, a reason which led the Commission to conclude that the payments at issue were not consistent with that communication and could not benefit from the derogation provided for in Article 107(3)(b) TFEU.
20 By the sixth plea, the Hellenic Republic complains that the Commission calculated the amounts to be recovered incorrectly since it did not deduct the de minimis aid covered by Commission Regulation (EC) No 1860/2004 of 6 October 2004 on the application of Articles 87 [EC] and 88 [EC] to de minimis aid in the agriculture and fisheries sectors (OJ 2004 L 325, p. 4) and Commission Regulation (EC) No 1535/2007 of 20 December 2007 on the application of Articles 87 [EC] and 88 [EC] to de minimis aid in the sector of agricultural production (OJ 2007 L 337, p. 35). For the 2008 financial year, the sum of EUR 25 million must be regarded as de minimis aid that is authorised and therefore not recoverable, whilst, for the three financial years from 2009 to 2011, the corresponding sum amounts to almost EUR 67 million.
21 The Commission, without expressing a view on the figures put forward by the Hellenic Republic, states in response that it does not in any way rule out the principle of deducting de minimis aid in the case of the Greek farmers.
22 It is to be observed that, by its arguments, the Hellenic Republic seeks, in essence, to demonstrate, first, that the payments at issue cannot be regarded as liable to affect trade between Member States and to distort competition, for the purposes of Article 107(1) TFEU, and second, that in any event the obligation, imposed in December 2011, to recover the sums granted from the beneficiaries must be classified as excessive. When examining those arguments, the particular circumstances that have marked the economic and financial situation in Greece since 2008 cannot be disregarded.
23 In that context, as regards the impact of the payments at issue on competition and on trade between Member States, it is to be recalled that, according to the Commission, those payments amount in total to roughly EUR 425 million. However, the sum of EUR 425 million must, prima facie, be reduced considerably.
24 First, it is common ground that a part of that sum, amounting to several tens of million euro, may be regarded as constituting de minimis aid. According to the Commission, it is even very probable that ‘numerous beneficiaries’ of the payments made by ELGA received aid of that kind, so that they are exempt from the obligation to repay aid. Furthermore, points 97, 98 and 104 of the contested decision expressly envisage the situation of sums liable to constitute de minimis aid not being recovered. If de minimis aid is not recovered from the beneficiaries and its grant is thus authorised, that is because it is considered not to distort competition and affect trade between Member States.
25 Second, it is common ground that under ELGA’s compulsory insurance scheme Greek farmers paid contributions which, indirectly at least, boosted ELGA’s revenue in 2008 and 2009 in the sum of at least EUR 145 million. Whilst the fact that the payments at issue made by ELGA were partly financed by such private contributions does not preclude their classification as State aid, the fact remains that the financial impact of those payments on competition and on trade between Member States is diminished by the fact that farmers themselves, including the beneficiaries of the aid, had to pay the contributions. Furthermore, the Commission acknowledged in point 22 of the contested decision that, in so far as the payments by ELGA as part of the compulsory insurance scheme were financed from the income from the special insurance contribution, they may be considered not to give those benefiting from them an undue advantage.
26 As the financial impact of the payments at issue on competition and on trade between Member States therefore seems, prima facie, to be substantially less than that of the amount of EUR 425 million adopted by the Commission, it cannot be ruled out that those payments were used exclusively to compensate the Greek farmers who had suffered revenue losses because the production of certain crops decreased as a result of adverse weather conditions, and not to give an artificial advantage to production and exports.
27 As the parties confirmed at the hearing, the Hellenic Republic has, for several years, been experiencing a profound economic and financial crisis. This crisis, which has placed the country in a certain state of economic isolation, has not spared the Greek agricultural sector. In this connection, the Hellenic Republic states as follows without being contradicted by the Commission:
— agricultural income in Greece decreased by 22.6% between 2006 and 2011, whereas in the European Union it increased by 19%;
— a fall of more than 15% was recorded in the value of crop production between 2005 and 2011;
— production costs increased by 11% in 2008, 4% in 2010 and 7.5% in 2011, whereas farmgate prices decreased significantly (33.9% for tomatoes, 27.5 % for cabbage, 11.7% for cotton, 11% for tobacco and 21.5% for spinach);
— bank finance for agricultural undertakings has fallen a further 49% and farmers now have only slender possibilities of finance.
28 In addition, it is evident that the Greek agricultural sector consists predominantly of small family farms. The Commission has implicitly recognised this fragmentation of the sector in conceding that the payments at issue were distributed in such a way that each Greek farmer received the sum of roughly EUR 500 on average. Furthermore, the Commission does not claim that the Greek agricultural sector is particularly aggressive commercially and in relation to exporting its produce, nor does it assert that non-Greek undertakings operating on the market for agricultural products have complained of being exposed, following the payments at issue, to particularly fierce competition on the part of Greek farmers.
29 The arguments put forward by the Hellenic Republic therefore raise the legal question whether, in the exceptional circumstances of the present case, the financial impact of the payments at issue, which consisted in compensation for Greek farmers, was genuinely such as to affect trade between Member States and to threaten to distort competition for the purposes of Article 107(1) TFEU. More specifically, the matter to be determined is whether those exceptional circumstances affect the application of considerations, accepted in the context of the regime governing de minimis aid, which enable aid that does not have an appreciable effect on trade and competition between Member States to be excluded from the scope of that provision (see, to this effect, Case C‑310/99 Italy v Commission [2002] ECR I‑2289, paragraph 10).
30 That question does not appear to have been answered definitively in the Court of Justice’s case-law. The Court of Justice uses the cautious wording that the relatively small amount of aid or the relatively small size of the undertaking which receives it ‘[does] not as such exclude the possibility’ that trade between Member States might be affected, aid of a relatively small amount being liable to affect such trade and to distort competition inter alia where there is strong competition in the sector in which the undertakings which receive it operate (see, to this effect, Case C‑278/00 Greece v Commission [2004] ECR I‑3997, paragraphs 69 and 70; Case C‑372/97 P Italy v Commission [2004] ECR I‑3679, paragraphs 53 and 54; and Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 54 and the case-law cited) or where the undertaking receiving the aid is organised for international trade (see, to this effect, Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11).
31 Consequently, that case-law leaves open the question whether in the present instance, on account of the quite particular and exceptional difficulties linked to the austerity measures which have been a feature of the reality of the Greek economy for several years, the Greek agricultural sector could be regarded as being neither exposed to strong competition nor organised for international trade, which might prevent the payments at issue from having been such as to affect trade and competition between Member States appreciably.
32 It should be added that the arguments set out by the Hellenic Republic raise a further legal question: whether, even if the payments at issue fulfilled all the conditions of Article 107(1) TFEU on the date of their grant, the contested decision must be considered excessive in that on 7 December 2011 it required their recovery although the extremely difficult state of the Greek agricultural sector had deteriorated further since their grant.
33 In this context, it is true that according to the case-law the obligation on a Member State to abolish State aid found by the Commission to be incompatible with the internal market is intended to restore the previous situation (see Case C‑75/97 Belgium v Commission [1999] ECR I‑3671, paragraph 65, and Case C‑310/99 Italy v Commission, paragraph 98). The Court of Justice has nevertheless made a point of specifying that it is only ‘as a general rule, save in exceptional circumstances’, that the Commission may lawfully request the Member State concerned to effect such recovery in order to restore the previous situation (Belgium v Commission, paragraph 66; Case C‑310/99 Italy v Commission, paragraph 99; Case C‑372/97 P Italy v Commission, paragraph 104; and Case C‑298/00 P Italy v Commission, paragraph 76).
34 Consequently, that case-law leaves open the question whether, in the present instance, the Hellenic Republic may legitimately plead exceptional circumstances such as to render it excessive to recover the payments at issue from the beneficiaries as required by the contested decision, given that the Hellenic Republic had to face, on the date when the contested decision was adopted, namely 7 December 2011, a serious disturbance in its national economy for the purposes of Article 107(3)(b) TFEU, including in its agricultural sector, and whether the Commission, drawing inspiration from that provision of primary law, should have foregone requiring any recovery from a sector seriously weakened by that disturbance.
35 The President of the Court considers that the answers to the aforementioned legal questions are not immediately obvious and call for a detailed examination, which forms part of the subject of the main proceedings. Accordingly, without the slightest prejudice to the Court’s view on the main action, the President of the Court cannot, at this stage, regard that action as manifestly unfounded. Consequently, the questions at issue appear, at first sight, sufficiently relevant and serious to establish a prima facie case such as to justify grant of the suspension that is sought of the operation of the contested decision, in so far as the latter requires the Hellenic Republic to recover the payments at issue from the agricultural producers.
Urgency and weighing up of interests
36 In accordance with settled case-law, the urgency of an application for interim measures must be assessed in relation to the need for an interlocutory order in order to prevent serious and irreparable harm to the party requesting the interim measures. It is for that party to adduce solid evidence that it cannot wait for the outcome of the main proceedings without having to suffer personally harm of that kind. Although it is not necessary for the imminence of the harm to be demonstrated with absolute certainty, its occurrence must nevertheless be foreseeable with a sufficient degree of probability. The party seeking the interim measures remains, in any event, required to prove the facts that form the basis of its claim that serious and irreparable harm is likely and are said to enable the judge hearing the application to determine the precise consequences which the absence of the measures applied for would in all probability entail. Purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see the orders of 26 March 2010 in Case T‑1/10 R SNF v ECHA, not published in the ECR, paragraphs 47 and 48 and the case-law cited, and of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, paragraph 32 and the case-law cited).
37 As the present application for interim measures has been made by the Hellenic Republic, it is to be noted that the Member States are responsible for those interests which are regarded as general interests at national level and may defend them in proceedings for interim measures (see, to this effect, the orders in Case C‑280/93 R Germany v Council [1993] ECR I‑3667, paragraph 27, and in Case C‑180/96 R United Kingdom v Commission [1996] ECR I‑3903, paragraph 85). The Member States may, in particular, seek the grant of interim measures by asserting that the contested measure could seriously jeopardise performance of their State tasks and public order.
38 In the present case, according to the Hellenic Republic, recovery of the sum of EUR 425 million from all the farmers in the country, numbering roughly 800 000 – who with their families account for a third of the total population of Greece – could trigger numerous reactions on the part of the agricultural community, which is affected by the crisis and by exceptional austerity measures, in particular as strikes in the public and private sectors have become a common occurrence whilst very acute social tensions and confrontations between demonstrators and the police are constantly increasing.
39 The Hellenic Republic states that, for the purpose of implementing the contested decision, the competent authorities informed all the farmers in January 2012 about the recovery of the aid found to be unlawful. In its immediate response, the Panhellenic Confederation of Unions of Agricultural Cooperatives, which represents all Greek farmers, stressed the difficult financial situation of the latter and their current inability to repay the sums received, given the economic crisis and the numerous austerity measures adopted, which have hit agricultural income severely.
40 The Hellenic Republic adds that asking some 800 000 farmers to repay now the sums granted and their recognised and declared inability to do so will necessarily lead to the accounting of those sums by the competent tax authorities, which will represent a considerable administrative cost, will have harmful administrative consequences and will give rise to conflicts with the public authorities because of the initiation in thousands of cases of debt enforcement procedures. As it is, the public sector is currently being called upon to implement new measures for the levying of tax, for the processing of tax declarations and for the determining of financial obligations that have fallen due.
41 The Commission contends that there is no urgency, observing that the economic malaise which is affecting the entire Greek population is unrelated to the implementation of the contested decision and that any inability of the farmers to repay the aid does not constitute per se serious and irreparable harm for the Hellenic Republic itself. The harm pleaded with regard to public order is theoretical and uncertain. The fact that certain farmers are obliged to repay unlawful aid does not automatically mean that they will cause disturbances. Nor has it been proved that farmers were at the origin of the disturbances that occurred in Athens at the beginning of the year, it being very probable that those disturbances were caused by the inhabitants of the city, who by definition are not farmers. General and vague fears concerning hypothetical events which might occur in the future cannot constitute the requisite serious and irreparable harm. As for the administrative burden resulting from recovery of the aid from numerous beneficiaries, this cannot constitute serious and irreparable harm for the Hellenic Republic, because it would be illogical to regard the measures required for the very implementation of the contested decision as constituting harm.
42 As to those submissions, and specifically the administrative difficulties pleaded by the Hellenic Republic, which are said to preclude immediate recovery of the payments at issue, it is true that, according to settled case-law concerning failure of Member States to fulfil obligations, apprehension of even insuperable internal difficulties does not justify a failure by a Member State to comply with its obligations under European Union law (Case C‑404/97 Commission v Portugal [2000] ECR I‑4897, paragraph 52). That case-law does not apply, however, where a Member State opposes such an obligation by the appropriate legal means and undertakes what is necessary to avoid unlawful conduct on its part.
43 In proceedings for interim relief the very issue to be determined is whether, prima facie, the applicant must in fact comply with an obligation owed by it under European Union law. In the present case, the President of the Court has accepted that there is a prima facie case such as to justify suspension of the operation of the contested decision, that is to say temporary non-compliance by the Hellenic Republic with that decision, in so far as it orders the Hellenic Republic to recover the payments at issue from the agricultural producers. The Hellenic Republic is therefore not prevented from submitting that such immediate recovery would entail administrative difficulties liable to cause it serious and irreparable harm.
44 In this context, the Hellenic Republic stated at the hearing, without being contradicted, that combating tax evasion constitutes one of its absolute priorities in the current economic circumstances. To this end, the Hellenic Republic is in fact in the process of implementing a fundamental reform of the tax authorities that is designed to modernise and improve the mechanism for tax collection and to overcome the major administrative obstacles which mark this area of public administration. In so doing, the Hellenic Republic legitimately intends, in the short and medium term, to concentrate its resources on the establishment of effective tax authorities that are capable, in particular, of identifying and pursuing the ‘big tax avoiders’ and combating tax fraud the volume of which, in terms of loss of revenue, was assessed at the hearing as being EUR 20 billion.
45 In those circumstances, an obligation on the Greek authorities to implement the contested decision, the legality of which will not be definitively determined until the main proceedings and any appeal proceedings before the Court of Justice have come to a close, could in all probability affect the combating of tax fraud at least partially.
46 As the Hellenic Republic has stated without being contradicted by the Commission, recovery of the payments at issue from the farmers concerned would require the involvement of several services, in particular ELGA and the tax authorities, during a period when the State does not have the personnel necessary for that purpose. In particular, when the aid to be refunded is not paid to ELGA voluntarily, the tax authorities must enforce recovery of the sums in question. Even if it is accepted that such measures would not be implemented against all of the 800 000 Greek farmers, since the number of beneficiaries of de minimis aid should be deducted, it is apparent from the figures available in this connection — namely de minimis aid amounting to EUR 92 million in 2008 and 2009 (see paragraph 20 above) and aid received by each farmer of EUR 500 on average (see paragraphs 14 and 28 above) — that the number of Greek farmers concerned would probably still come to several hundreds of thousands.
47 In the light of the extremely difficult general financial situation described above and the aforementioned reaction of the Panhellenic Confederation of Unions of Agricultural Cooperatives, it is easy to foresee that a significant proportion of the hundreds of thousands of beneficiaries would refuse to pay the sums demanded, necessitating massive intervention on the part of the tax authorities’ staff, who have not, however, increased in number. It is evident that such forcible large-scale collection of tax would prevent the tax authorities to an appreciable extent from devoting themselves to one of their priorities, namely combating tax avoidance and collecting sums eluding tax that are nearly 50 times greater than the contested payments.
48 As to the risk of perturbation of public order if the payments at issue are recovered immediately from the Greek agricultural sector, it is common ground that a deterioration of confidence in the public authorities, generalised discontent and a feeling of injustice are features of the current social climate in Greece. In particular, as the Hellenic Republic has stated without being contradicted by the Commission, violent demonstrations against the draconian austerity measures adopted by the Greek public authorities are constantly increasing. At the hearing the Hellenic Republic also drew attention to the marked advance of certain parties on the extreme right and the extreme left in the most recent parliamentary elections in Greece.
49 In those circumstances the risk, invoked by the Hellenic Republic, that immediate recovery of the payments at issue in the agricultural sector may trigger demonstrations liable to degenerate into violence appears neither purely hypothetical nor theoretical or uncertain. The possibility cannot be ignored that the operation to recover the payments at issue will be publicly used, by certain circles, as an example of the injustice to which the agricultural community is subject and that, in the current situation laden with intense emotions, such public rhetoric will trigger some violent demonstration or other, whilst it is immaterial what category of the population could be at the origin of violence necessitating ever greater deployment of the police force. It is evident that the perturbation of public order that is brought about by such demonstrations and by the excesses to which, as recent dramatic events have shown, they may give rise would cause serious and irreparable harm, which the Hellenic Republic may legitimately invoke.
50 In view of the factors set out in paragraph 48 above, the present case must be distinguished from the case which gave rise to the order in Case C‑278/00 R Greece v Commission [2000] ECR I‑8787 (paragraphs 8, 16 and 18), in which reliance upon ‘very serious social upheaval’ was rejected on the ground that the Member State concerned had merely made general observations without specific evidence and had given no particulars whatsoever regarding the possibility of the serious events pleaded. In contrast to the context of Case C‑278/00 R, it is common knowledge that, in the present instance, perturbation of public order, such as that invoked by the Hellenic Republic as a foreseeable consequence of the recovery imposed, has already occurred in similar situations, namely in the context of protest movements against the austerity measures adopted by the Greek public authorities since the economic crisis began.
51 It is thus clear that the case in point displays specific features establishing urgency.
52 This outcome is consistent with the weighing up of the various interests involved, in the context of which the judge hearing the application for interim measures must examine, in particular, whether or not the applicant’s interest in obtaining the interim measures sought outweighs the interest in immediate application of the contested decision (see, to this effect, the order in Joined Cases C‑182/03 R and C‑217/03 R Belgium and Forum 187 v Commission [2003] ECR I‑6887, paragraph 142).
53 The Hellenic Republic has demonstrated the urgency of the application for interim measures and established a prima facie case supporting that application. It should accordingly be acknowledged that it has a legitimate interest in the suspension of operation sought, in particular as the Commission merely asserts that the need to comply with the rules on competition should prevail over the ‘vague and uncertain’ threat to public order. As has been stated above, first, it is not evident that the payments at issue fulfil all the conditions of Article 107 TFEU and, second, the urgency constituted by the risk of perturbation of public order cannot be classified as either vague or uncertain. With regard to the risk of prejudicing the Greek authorities’ efforts to combat all tax evasion effectively, it cannot, moreover, be disregarded that the success of those efforts is also indirectly in the European Union’s interest, inasmuch as part of the revenue from tax collection in Greece, as well as implementation of the contested decision, may contribute to the general budget of the European Union.
54 In the exceptional circumstances which currently obtain in relation to the economic and social situation in Greece, priority should thus be accorded to the interests invoked by the Hellenic Republic consisting in, first, preserving social peace and preventing social unrest and, second, being able to concentrate the capacities of its tax authorities on the tasks which it regards as paramount for the country. By contrast, grant of the suspension of operation would expose the European Union’s interests solely to the risk of postponement of the national measures for recovery to a later date, and there is no evidence that that postponement would in itself prejudice the chances of success of those measures.
55 It follows from the foregoing that the application for suspension of the operation of the contested decision should be granted in so far as the latter obliges the Hellenic Republic to recover the sums paid from the beneficiaries.
56 Furthermore, Article 108 of the Rules of Procedure enables the judge in interim relief proceedings to vary or cancel his order at any time in the event of a change in circumstances. The words ‘change in circumstances’ should be understood as covering, in particular, facts capable of altering the assessment of the criterion of urgency in the specific case (order in Case C‑440/01 P(R) Commission v Artegodan [2002] ECR I‑1489, paragraphs 62 to 64). It will therefore, if appropriate, be for the Commission to apply to the Court if it considers that the circumstances have changed in such a way that they may justify variation of the present interim order.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The operation of Commission Decision 2012/157/EU of 7 December 2011 concerning compensation payments made by the Greek Agricultural Insurance Organisation (ELGA) in 2008 and 2009 is suspended in so far as that decision obliges the Hellenic Republic to recover the sums paid from the beneficiaries.
2. Costs are reserved.
Luxembourg, 19 September 2012.