C-34/70

JUDGMENT OF THE COURT 17 DECEMBER 1970<apnote>1</apnote>

Syndicat national du Commerce extérieur des céréales and Others v Office national interprofessionnel des céréales and Minister for Agriculture (Reference for a preliminary ruling by the French Conseil d'État)

Case 34/70

Summary

1. Agriculture — Common organization of the markets — Cereals — Intervention machinery — Functioning — Access

2. Agriculture — Common organization of the markets — Cereals — Prices — Intervention agencies — Taking over — Conditions — 'Holder' within the meaning of Article 1 of Regulation (EEC) No 1028/68 of the Commission — Community scope of this concept

(4) Compagnie Algérienne de MEUNERIE, Paris, (5) Compagnie Continentale (France), Paris, (6) Société J. A. Goldschmidt & CIE, Paris, (7) Établissements G. & P. LÉVY, Paris, (8) Les Fils de Félix SAIER, Paris,

and

Office National Interprofessionnel des Céréales and Minister FOR

Agriculture,

on the interpretation of certain provisions of Regulations No 1028/68 of the Com­ mission of 19 July 1968 fixing the procedure and conditions for the taking over of cereals by intervention agencies for the 1968/1969 marketing year (OJ 1968, L 176),

THE COURT

I — Facts and procedure (OJ 1967, No 117; OJ [English Special Edition] 1967, p. 33) on thé common The facts and procedure may be summa­ organization of the market in cereals rized as follows : provided for the fixing of intervention prices in order to guarantee' to producers 1. Article 4 of Regulation No 120/67 of that the market price does not fall below a the Council of the EEC of 13 June 1967 minimum level. The implementing con­

SYNDICAT NATIONAL CÉRÉALES ν OFFICE NATIONAL CÉRÉALES

. . lots . . . of wheat . . . ruling was lodged at the Court Registry on shall be entitled to offer such cereals to 16 July 1970. the intervention agency . . . The inter Synacomex jointly with André & Cie, vention agencies shall lay down as Société française Bunge, Compagnie al necessary supplementary procedures and gérienne de meunerie, Compagnie conti conditions for the taking over of cereals nentale, Société J. A. Goldschmidt & Cie, as may be compatible with the provisions Établissements G & P. Levy, Les fils de of this regulation to take into account the Félix Saier and also ONIC and the Com special conditions existing in the Member mission of the European Communities State to which they belong.' submitted written observations in accord By decision of 30 August 1968 the Office ance with Article 20 of the Protocol on the national interprofessionnel des céréales Statute of the Court of Justice. (ONIC) adopted a set of'Rules laying down After hearing the report of the Judge- the general conditions for the taking over Rapporteur and the views of the Advocate- by the Office national interprofessionnel General, the Court decided to open the oral des céréales (ONIC) of cereals offered to procedure without any preparatory enquiry. the agency.' Article 1 of this decision Synacomex jointly with the other plaintiffs provides: in the main action, ONIC and the Com 'Until the end of the 1968/1969 marketing mission of the EC made their oral observa year authorized collecting agencies may tions at the hearing on 17 November 1970. submit offers with a view to the wheat's.

ion on 8 December 1970. ance with Article 1 (1) of Regulation No 1028/68 should be available to every holder. II — Observations submitted under On this objection's being rejected by the Article 20 of the Statute Minister, the question in dispute was sub mitted by Synacomex and the parties The observations submitted under Article named at (2) to (8) above to the French 20 of the Statute of the Court of Justice may Conseil d'Etat.

JUDGMENT OF 17. 12. 1970 — CASE 34/70

It having purchased from other holders. The thus constitutes a support measure for the question which appears to have troubled benefit only of producers and not cover the Conseil d'État is different; it is whether against the risks of price variations to in view of Article 5 of Regulation No which in a free system trade and industry 1028/68 restrictions may be read into are subject. It is therefore proper that its Article 1 as regards the definition of holders effects apply at the production stage or at to whom intervention is open. According least at a stage as near as possible to it. to the wording of the said Article 5 the Regulation No 1028/68 has been issued in procedures and conditions for taking over this context. The principle laid down in which the intervention agencies may lay Article 1 allowing 'every holder' to offer down as necessary supplementary measures cereals to the intervention agencies is are only such as are 'compatible with the governed by the application of the pro provisions of this regulation'. It follows visions of Article 5. This latter gives inter that additional measures restricting the kind vention agencies the power not only to fix of holder to whom intervention is available 'the procedures' but also 'supplementary cannot be based on Article 5, since they conditions for the taking over of cereals'. would be incompatible with the regulation These 'conditions' can only be basic con itself which in Article 1 makes intervention ditions since the 'procedures' govern the open to 'every holder of cereals'. Although formal conditions. As to their content, Article 5 thus allows certain special con since it is a question of having regard to the ditions or procedures to be fixed—ONIC special circumstances existing in every has made use of this in the rules in ques Member State, Article 5 does not impose tion— these conditions and procedures restrictions and does not exclude agencies. must first and foremost be applicable to all These conditions only adapt to each holders who offer cereals to the intervention Member State, in accordance with Article agencies. 5, the intervention with which Article 1 is The plaintiffs conclude that Article 1 of concerned. By 'conditions for the taking Regulation No 1028/68 'applies to every over' it is thus necessary to understand in holder of cereals and in particular to ex particular those which relate to the defini porters and that Article 5 of this regulation tion of 'holder'. A 'holder' is anyone who

The Council of

the EEC having advised the French in the cereal sector there is not yet a Com Government to amend its laws so that the munity organization of markets in place of monopoly of warehousing agencies might the six national organizations. On the be reduced by allowing many new trade contrary it claims that the common categories to undertake collection, the organization of the market in cereals con French Government issued Order No stitutes 'a European market organization' 67/182 of 22 September 1967, Article 1 of within the meaning of Article 40 (2) (c) of which defines the conditions to the kind of the Treaty : proof is supplied by considering authorized collector entitled by the rules in the number of provisions and their legal question to offer cereals to the intervention form and, above all, by the fact that in all

collectors represent a relatively small common organization has ever been number of establishments which mainly created within the framework of the com perform the function of collectors of cereals mon agricultural policy, it is in the sector and in this capacity market almost all that in question, in which this organization is the producers supply. It is only at the stage the most highly developed. of these collectors that intervention can be After supplying information on the con effective by reason of the controls exercised cept 'authorized collecting agencies' in by ONIC on produce coming in and going French administrative terminology before out, on stocks and on the use of cereals and and after Order No 67/812 of 22 September that the requirements of the rules which 1967, the Commission approaches the limit intervention to cereals harvested in examination of the provisions in question the Community can be satisfied. by citing the principle laid down in the The provision in the rules in question case-law of the Court of Justice (Case limiting to collectors the right to offer 40/69) which establishes that, whilst in cereals to the intervention agencies does sectors where the Community has not not necessarily exclude exporters from the legislated, the national authorities continue benefit of intervention, since they can to exist subject to their respecting the rules become collectors (as for example the third and general principles of the Treaty, in the plaintiff which was accredited in October spheres covered by Community legislation 1967). there has been a transfer of sovereignty by ONIC concludes that 'conditions for the the Member States to the Community or taking over of cereals relating to the more precisely a transfer of 'legislative definition of the holder or his entitlement powers'.

Having mission of the European Communities regard to this criterion, the Commission proposes its interpretation of the said articles in the light of legal and economic The Commission rejects the argument that considerations.

(a) From the legal point of view it states that vention agencies show that the suppler as regards Article 1 (1) in the statement of mentary conditions laid down relate to grounds accompanying the proposal which taking over. was to become Regulation No 120/67 it had already shown on the one hand that (b) At the economic level the Commission cereals offered to intervention agencies had stresses that the intervention machinery, as to comply with 'conditions previously provided for, was established only to stop fixed on a Community basis and applicable the normal play of the market when it was throughout the Community' and, on the falling.

vention agency according to a fixed system may function correctly according to procedure. the scheme which has just been outlined, It states further in respect of Article 5 : the opportunity to have recourse to inter vention must be actually available to every — this article enables Member States to holder—at least to every holder of a make 'supplementary' provisions but minimum quantity—and not only to not such, as conflict or derogate. To authorized collectors. If a holder who had restrict a concept which is perfectly purchased cereals from an authorized clear and which is sufficient in itself is collector were not sure of being able to quite different from supplementing it. approach the intervention agencies him7 Moreover the words 'every holder' do self, in the event, rare certainly but not not require any qualification and their impossible, of his being unable to sell the use rules out any restriction; whole of what he had purchased, he would take this risk into account in his offer and — under the terms of this same article the his attitude would thus constitute a factor supplementary provisions which the in reducing prices.

intervention agencies. The, definition of ment, the Commission has not considered the holder cannot come within the term the compatibility of the provisions of those 'procedure' of taking over. Nor can it rules with Community law. come within that of 'conditions' for It concludes 'any condition for taking over taking over. Article 3 (2) of the same relating to the definition of the holder is regulation shows that this last term excluded from the scope of the supplemen relates only, to the conditions of transfer tary measures provided for in Article 5 of of a consignment of cereals.

SYNDICAT NATIONAL CÉRÉALES ν OFFICE NATIONAL CÉRÉALES

Grounds of judgment

1 By order dated 26 June 1970 lodged at the Court on 16 July 1970, the French Con­ seil d'État has raised under Article 177 of the EEC Treaty the question 'whether by use of the words "every holder" in Article 1 of Regulation No 1028/68 of the Commission of the European Communities all conditions for the taking over of cereals relating to the definition of the holder or his entitlement to avail himself of the intervention machinery, having regard to the peculiarities of the cereal market in the Member State of the holder, are or are not excluded from the scope of the supplementary measures provided for in Article 5 of the said regulation'.

2 Under Article 1 (1) of Regulation No 1028/68: 'Every holder of homogeneous lots of a minimum of 50 tonnes of common wheat, rye, barley and maize and of 10 tonnes of durum wheat harvested in the Community shall be entitled to offer such cereals to the intervention agency'.

3 Under Article 5 of the same regulation 'intervention agencies shall lay down as necessary supplementary procedures and conditions for the taking over of cereals as may be compatible with the provisions of this regulation to take into account the special conditions existing in the Member State to which they belong'.

4 It appears from these provisions that the principle contained in Article 1 enabling 'every holder' to offer cereals to the intervention agency is subject to conditions for taking over laid down by the Community rules to which may be added supplement­ ary conditions for taking over laid down by the Member States in accordance with Article 5 of the said regulation.

10 It is impossible to admit in the absence of a clearly expressed intention on the part of the draftsmen of the regulation that in the final stage of the common organiza­ tion of the cereal market each State may give its own meaning to the generality of the expression 'every holder'.

11 The generality of wording is due in particular to the fact that the exclusion of certain classes of holders would have the effect of burdening the market with the quantities excluded from intervention although they originated from the national production in favour of which however the rules were established.

12 Moreover, to attain the objectives set, the implementation of this machinery must be subject to rules which are as uniform as possible in order to avoid obstacles to the free movement of cereals within the Community.

13 Although in order to allow appropriate adaptation of the market to the regional­ ization of prices, the intervention agencies may lay down, in particular circum­ stances, intervention measures adapted to those circumstances, Regulation No 120/67 on which Regulation No 1028/68 is based, shows in the seventh recital in its preamble that for the purposes of the required uniformity of intervention systems, those special circumstances should be assessed and the appropriate measures determined at Community level.

14 According to the fourth recital in the preamble to Regulation No 1028/68 it is in particular with regard to the conditions of offer to the intervention agencies and the taking over of cereals by them that the principle of uniformity is considered in­ dispensable for the intervention systems in order to avoid any discrimination between those concerned within the framework of the Common Market.

19 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the observations of Synacomex jointly with the other plaintiffs in the main action, ONIC and the Commission of the European Communities; Upon hearing the opinion of the Advocate-General;

OPINION OF MR ROEMER —CASE 33/70

Having regard to the Treaty establishing the European Economic Community, especially Articles 39, 40 and 177; Having regard to Regulation No 120/67/EEC of the Council of 13 June 1967 and Regulation (EEC) No 1028/68 of the Commission of 19 July 1968; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

Registrar President.

OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 9 DECEMBER 1970<apnote>1</apnote>

Mr President, the procedure and conditions for the taking Members of the Court, over of cereals by intervention agencies for the 1968/69 marketing year (OJ 1968, The case for a preliminary ruling with which L 176 p. 1). This regulation comes within we are concerned today relates to the inter­ the framework of the common organization pretation of Regulation No; 1028/68 of the of the market in cereals set up by Regulation Commission of 19 July 1968 laying down No 120/67/EEC of the Council of 13 June

1 — Translated from the German,