Súdny dvor Európskej únie·Rozsudok·22.1.1976

C-60/75

ECLI:EU:C:1976:9

Súd: Súdny dvor Európskej únie
IČS: 61975CJ0060
Zdroj: eur-lex.europa.eu ↗

JUDGMENT OF 22. 1. 1976 - CASE 60/75

In Case 60/75

Reference to the Court under Article 177 of the EEC Treaty by the Pretura di Bovino for a preliminary ruling in the action pending before that court between

CARMINE ANTONIO RUSSO and

AZIENDA DI STATO PER GLI INTERVENTI SUL MERCATO AGRICOLO (AIMA) (National Body for Interventions on the Agricultural Market),

on the interpretation of the provisions of Regulation No 120/67 of the Council of 13 June 1967 on the common organization of the market in cereals (OJ, Special Edition 1967, p. 33),

THE COURT

composed of: R. Lecourt, President, R. Monaco and H. Kutscher, Presidents of Chambers, A. M. Donner, J. Mertens de Wilmars, M. Sørensen and Lord Mackenzie Stuart, Judges,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order for reference and the written July 1973 to freeze the wholesale and observations submitted under Article 20 retail prices of widely-consumed of the Statute of the Court of Justice of products, including pasta products made the EEC may be summarized as follows: from durum wheat.

At the same time, the Azienda di Stato I — Facts and procedure per gli Interventi sul Mercato Agricolo (the National Body for Interventions on 1. In the context of its anti-inflationary the Agricultural Market, hereinafter policy the Italian Government decided in referred to as 'the AIMA') was authorized

RUSSO v AIMA

to 'take measures for the organization of EEC Treaty, to submit the following the domestic market in wheat. . . questions to the Court of Justice: involving the acquisition and stocking of products in Italy and abroad for '1. Does the existence of a common subsequent sale under supervision on the organization of the market in cereals domestic market' on the conditions laid allow the Member States to adopt down by the Comitato Interministeriale unilateral measures which, through per la Programmazione Economica (the commercial operations in fact carried Italian Inter-Ministerial Committee for out by the intervention agency Economic Planning, hereinafter referred established for the implementation of to as the 'CIPE'). Regulation No 120/67, result in an alteration of the price formation

2. Between March and August 1973 machinery laid down in Community prices of durum wheat on the world provisions and in a distortion of market underwent a very significant intra-Community trade? increase, bringing them to a level twice 2. Do the purchase of a quantity of as high as they had been previously. This durum wheat by an intervention high level of prices continued until the agency of a Member State on the beginning of 1975, although it was world market at a given price level subject to certain fluctuations. and its subsequent resale within a Member State at a lower price than Prices of durum wheat on the Italian the purchase price, and substantially market to a certain extent followed this lower than the intervention price, world-wide trend and rose above have the effect of a subsidy on the Community target prices. importation of the product in question (in this case durum wheat)?

3. In this situation and on the basis of 3. Since the provisions of Regulation the abovementioned authorization the No 120/67 of the Council and the AIMA acquired on the world market in subsequent detailed rules for their September 1973 large quantities of application are directly applicable durum wheat which it sold to Italian within the Italian legal system, do manufacturers of pasta products at prices they create for traders in this sector a below the purchase price. right that there shall be no disturbance of the normal operation

4. Mr Russo, an Italian producer of of the machinery provided for by the durum wheat, considers himself injured common organization of the market by those operations of the AIMA, against with regard to the formation of prices whom he has brought an action for — a right which the national courts damages. He asserts that in January 1975 must directly protect? he was obliged to sell a quantity of 4. If affirmative replies are given to the durum wheat at a price of Lit. 17 000 per foregoing questions, the Court is quintal whilst his legitimate expectation asked to rule whether the had been that under the system of the abovementioned intervention by the common organization of the market he Member State is to be considered as would obtain a price of approximately an illegal action and consequently Lit. 18 500 lire per quintal. constitutes an infringement of the legal position accorded by Com

5. Since the Pretura di Bovino munity rules to private traders. considered that the outcome of this 5. If an affirmative reply is given to the dispute depends upon the interpretation foregoing question, does there exist of Community law it decided by an order in Community law a principle of 2 May 1975 to suspend judgment and, allowing private persons occupying in accordance with Article 177 of the the legal position described in the

JUDGMENT OF 22. 1. 1976 - CASE 60/75

provisions of Regulation No 120/67 which it subsequently passed on to pasta to be completely and in every way producers at a price of Lit. 13 000 per exempt from the harmful pecuniary quintal, that is to say, below the consequences resulting from the Community intervention price. The unlawful action of the Member State, operations carried out by the AIMA had in particular as regards the an appreciable effect on the formation of intervention agency? market prices for durum wheat in Italy.

6. The order making the reference was With regard to the first question Mr received at the Court Registry on 7 July Russo maintains that in accordance with 1975. the established case-law of the Court, the transfer of powers in connexion with a The plaintiff in the main action, common policy implies that all future represented by E. Cappelli and P. de decisions are to be taken by the Caterini, and the Commission, Community institutions and he recalls in represented by its Legal Adviser, G. this connexion that in the judgment Marenco, lodged written observations. delivered on 23 January 1975 in Case Upon hearing the report of the 31/74 (Galli [1975] ECR 47) the Court Judge-Rapporteur and the views of the stated that 'Member States can no longer Advocate-General the Court decided to take action, through national provisions open the oral procedure without any taken unilaterally, affecting the preparatory inquiry. machinery of price formation as established under the common organization'. I I — Written observations sub mitted to the Court Mr Russo consequently suggests that the Court should reply to the first question 1. Observations submitted by Mr Russo as follows:

Mr Russo explains the Community rules 'Any act or course of action by a Member relating to the cereals sector, recalling State carried out either directly or that their main function is to regulate through public bodies or authorities, prices, and then gives an account of the which is capable of modifying the position on the world market in cereals machinery of price formation for which during 1973 and 1974. He emphasizes provision is made by the common that the common organization of the organization or which brings about such market in cereals permits Italy to have modification, is incompatible with the recourse to Community measures to common organization of the market in counter shortages and to intervene to cereals. In particular there is a temper the rise in prices. prohibition on any sale or purchase by the intervention authority other than in However, the Italian Government the context of the strict and punctual adopted unilateral national measures; the fulfilment of the duties entrusted to it by CIPE decided, by orders of 7 September Regulation No 120/67 and the 1973, 29 March 1974 and 7 December implementing provisions thereof.' 1974, to carry out an operation untended to obtain durum wheat for the Italian With regard to the second question Mr pasta-producing industry at predeter Russo maintains that the system of trade mined prices. In implementation of with third countries established by those decrees the AIMA acquired large Regulation No 120/67 prohibits all forms quantities of durum wheat on the world of import subsidies even if prices on the market in the course of 1974 at a price of world market exceed the Community approximately Lit. 20 000 per quintal, threshold price. It is clear that a Member

RUSSO v AIMA

State which buys at a certain price on the regulations, that is to say, measures world market and subsequently sells on which as such are capable of creating its own domestic market at a price below individual rights which the national the purchase price, rendering the public courts must protect, but he concedes that purse liable for the financial loss this fact does not of itself suffice to allow incurred, is granting an import subsidy. final conclusions to be drawn as to the Mr Russo considers that there is no actual effects of such regulations within doubt as to the illegality of this the national legal systems.

It should be operation. No Community provision, and considered whether, in appropriate cases, certainly not Article 19 of Regulation No the legal effects for individuals do not 120/67, can be invoked to justify the rather depend on any discretionary operations of the AIMA. powers which the national authorities may possess. With regard to the third question Mr Russo considers that it relates to the After considering the role of the national same problems as those already raised by authorities Mr Russo concludes that the other Italian courts (Cases 13/68, Salgoil, Community provisions prescribe for the [1968] ECR 453 and 93/71, Leonesio, intervention authorities a clear, precise Rec. 1972, p. 287). and unconditional prohibition on behaviour which tends to modify the Although it is clear that the question machinery of price formation.

He reflects the distinction between considers that this conclusion is individual rights and legitimate interests substantiated by recent decisions of the which is peculiar to the Italian legal Court and in particular by the aforesaid system and that this distinction may not judgment in the Galli case. be taken into consideration before the Court of Justice, it is none the less true To deny the existence of an individual that, since individual situations are right in relation to a course of action involved which originate exclusively in adopted by a State would contradict the Community law, it is for the Court to objectives of the general interest of the provide the national court with the Community and would in the opinion of factors necessary to define with regard to the plaintiff abandon the operation of the domestic legal system the type of the market to the whim of national individual situation corresponding to the authorities and to the considerations of a sort of protection which the Community political nature which, according to the system intended to provide for circumstances, prompt the Commission individuals. to institute proceedings for failure to fulfil an obligation under the Treaty. The first factor which must consequently be established is whether the For these reasons Mr Russo suggests that Community provisions expressly the Court should reply to the third guarantee, in relation to the intervention question as follows: agencies, the interest of farmers in having prices freely based on supply and 'The provisions of Regulation No 120/67 demand or whether on the contrary such of the Council and the implementing provisions refer only indirectly to the provisions issued subsequently are position of private operators and accord directly applicable within the legal to the national authorities an systems of the Member States.

In independent power of action which particular those provisions impose upon involves a certain discretionary power. the national authorities a clear, precise and unconditional obligation to refrain In this respect Mr Russo observes first of from any act or course of action which all that in this case there exist would result in or entail a modification

JUDGMENT OF 22. 1. 1976 - CASE 60/75

of the machinery of price formation; It is self-evident that only the principle there is an individual right corresponding of the obligation to make reparation is to that obligation which is protected established in this case. The rules for directly and in its entirety by effecting reparation must continue to fall Community law and as such must be within the competence of the national afforded direct protection by the national court.

courts.' Mr Russo consequently suggests that the With regard to the fourth question Mr Court should reply to the fifth question Russo asserts that the reply can only be as follows: the logical outcome of the replies to the three foregoing questions. The infringement of individual rights With regard to the fifth question Mr originating in directly applicable Russo considers that although a new and Community law and governed by the difficult problem is raised it merely latter in any event requires the national constitutes a development of the courts to provide for compensation — foregoing questions, in particular, of the having recourse to the means open to third question. The relevant question them under the respective national legal remains that of determining the status, systems — of the adverse financial the limits and the content of the consequences suffered by the holders of individual right conferred upon private those rights owing to infringement of the law.' persons.

In this connexion the plaintiff maintains 2. Observations of the Commission in particular that although, in developing the concept of direct applicability, the The Commission considers that the first Court has come to recognize the concept two questions raise the problem of of an 'individual right stemming from whether the course of action of a Community law which the national Member State in acquiring durum wheat courts must protect, it has done so for on the world market and reselling it at reasons of uniformity, that is to say, in prices below the purchase price is order to guarantee everywhere the same compatible with the common effects and the same degree of organization of the market in cereals. effectiveness for Community provisions. This problem must be considered under This regard for uniformity must lead the three heads. Court to define in outline the guarantees provided by Community law for First, it must be considered whether such situations arising within that law. If not, course of action does not conflict with

there would be little point in the machinery of prices and proclaiming the existence of interests interventions on the Community market protected by Community provisions if it which are intended to maintain prices on had subsequently to be admitted that the that market. In this connexion the consequences of any infringement of Commission maintains that if the level them varied from one Member State to of the market price exceeds the target another. Article 7 of the EEC Treaty can price the measure adopted by the provide the necessary basis for this. The Member State would be incompatible prohibition on discrimination would thus with the machinery in question only if acquire a more substantive meaning if it the resale price were lower than the were backed by the principle of the target price, since in this case it would obligation to make good 'Community' tend to bring the market price below the legal situations which have been target price which might oblige the adversely affected by a course of action Community machinery to come into which is illegal under Community law. operation again. If on the other hand the

RUSSO v AIMA

market price were below the target price In the opinion of the Commission the the action of the Member State would incompatibility of the activity of the undoubtedly be incompatible with the AIMA with the common organization existence of the common organization. therefore seems incontestable and following the Galli judgment it did not Secondly, the Commission wonders fail to point this out to the Italian whether the activity in question does not Government. conflict with the machinery prescribed for cases where prices on the world With regard to the third and fourth market reach the level of Community questions the Commission asserts that prices in order to avoid a resultant the Pretura is justified in asking whether excessive increase in market prices and the Community provisions must be in order to ensure supplies. interpreted as conferring on individuals a right whereby the Member States must The Commission examines the legal refrain from adopting measures foundation of the machinery laid down incompatible with those provisions.

This in Articles 19 and 20 of Regulation No problem does not in fact concern the 120/67 and the general provisions in direct applicability of Community implementation thereof (Regulations Nos provisions, which is incontestable since 1968/73, OJ L 201, p. 10, and 2591/69, L they are provisions in the form of 324, p. 1); it then explains that for the regulations, but rather their inter period during which the operations of pretation. the AIMA were carried out it prohibited the export of durum wheat from 4 According to the case-law of the Court a August 1973 until 9 April 1975, by way Community provision gives rise to of a protective measure. individual rights to the extent to which that provision is intended to protect the In the opinion of the Commission the particular interests of individuals.

It is operations of the AIMA are incompatible true that the Court has laid down this with that machinery. The Community condition and justified it with reference provisions do not confer any to the Communities' non-contractual independent power on the Member liability. This is the first occasion on States in this matter. Those provisions which the question has been raised with describe a system which is complete in regard to the liability of the Member itself, and since they fix the powers of States. Nevertheless, since a matter of the Community institutions they interpretation of Community law is at expressly exclude the right of Member issue, the Commission does not consider States to adopt contrary or even that the solution can differ in the two supplementary measures. cases. Furthermore, any other solution

would involve a serious risk of Thirdly, the Commission raises the differences in the application and scope question whether the activity of the of Community law depending on the AIMA does not conflict with the system legal system within which it is invoked. for the formation of market prices arising from the common organization as a Consequently, the Commission considers whole. It follows from the judgment in whether the relevant Community rules Galli that the very existence of a have as their objective the protection of common organization of the market the interests of individuals. presupposes that apart from the machinery for which provision is It is already clear from what has just expressly made market prices must been said regarding the system of price depend solely on the forces of free formation resulting from the common competition. organization as a whole that the rule

JUDGMENT OF 22. 1. 1976 - CASE 60/75

which may be derived therefrom by provide a system for the protection of definition protects all operators whether individual rights created by Community supplying or obtaining cereals on the rules. With regard to the extent of the market. From this it must be concluded protection, the principles of efficiency that the rules regarding the common and of the uniform application of organization of the market confer upon Community law require that this individuals a right that Member States protection should be appropriate and shall abstain from adopting measures of effective, without prejudice to the neutral the kind applied by the AIMA. stance of Community law with regard to the procedure chosen. The fifth question is whether there is a Community principle whereby, if an Mr Russo, represented by Mr Cappelli infringement by the Member States and Mr Caterini, the Italian Government, adversely affects the rights of individuals, represented by Mr Marzano, and the the latter must be able to obtain Commission, represented by Mr complete compensation for the financial Marenco, presented oral argument at the loss suffered. public hearing on 18 November 1975.

The Commission recalls that the Court In the course of this hearing the has already stated that Community law interveners submitted the additional 'does not restrict the powers of the evidence summarized below: competent national courts to apply, from among the various procedures available under national law, those which are According to the Italian Government appropriate for the purpose of protecting the third question is the essential one, the individual rights conferred by since in the event of a negative reply to it Community law' (Judgment of 4 April the Court may refrain from replying to 1968 in Case 34/67, Luck, [1968] ECR the other questions. 245). This presupposes that national law must provide procedures for the The problem raised by this question is protection of rights arising from whether the Community provisions Community rules. The obligation confer upon individuals the right to devolving upon Member States on this obtain a certain price level. ground is already in existence owing to the fact that the rule in question has It is impossible to accept that durum given the protected interest the status of wheat producers enjoy so extensive a a 'right'. right. If it is conceded that the Community provisions on the common The existence of such an obligation was organization of the market confer such a confirmed by the Court when, in its right upon individuals this reasoning judgment of 19 December 1968 in Case must be followed to its most extreme 13/68 (Salgoil, [1968] ECR 453), it ruled conclusions. This implies first of all that that such rules 'require the authorities, the producer can supervise by judical and in particular the relevant courts of means the exercise of the powers the Member States, to protect the conferred upon the Commission; but interests of those persons subject to their since the Community rules also protect jurisdiction who may be affected by any the consumer the latter must be granted possible infringement of the said the same right. Consumers who consider provisions'. that a right analogous to that enjoyed by producers (that is to say, the right to pay Thus it does not even appear necessary to a fair price) has been infringed could trace back to Article 5 of the EEC Treaty initiate proceedings against the Com the obligation on the Member States to munity institutions.

RUSSO v AIMA

The Italian Government maintains that example in a shortage in a particular the only right enjoyed by producers country or region. which gains complete protection under the Community provisions in question is In this connexion the Italian the right to sell products to the Government adds that there can be no intervention agency at the intervention measure which does not ultimately price. Apart from this right, either it influence prices, whether it is an increase must be accepted that any producer or in the wages of civil servants, the consumer can supervise the exercise of adoption of different criteria for taxes, the powers conferred upon the and so on. However, if the Member States Commission or one must consider which no longer exercise powers within the of the directly applicable provisions in framework of a common organization of question can give rise to an individual the market it must be concluded from right. this that the Member States may no longer take measures in any of the The Italian Government considers that spheres governed by that organization, the consequences of an affirmative reply and this holds good even with regard to to the question are so unacceptable as to short-term economic policy. render a negative reply mandatory. The Italian Government considers that a

With regard to the fifth question the ruling must be given that national Italian Government recalls that Article measures which affect neither the 215 of the EEC Treaty only governs the movement of goods nor the formation of liability of the Community. In relation to prices on the European market (and the citizens the liability of the State must of measures of the AIMA have not affected necessity still be governed by the either, as the Commission found in Case national legal systems. It is not enough 40/75 (Bertrand) cannot be contrary to for the Court to assert that States are Community rules. Otherwise the liable to individuals as it may make this competent national authority would have assertion concerning the Community. to apply to the Community authorities in The uniformity envisaged by such a every case in which a product subject to judgment does not exist. The objective of an organization of the market was in attaining a uniform system of rules is in short supply in a country, a region or reality jeopardized by the systems both of indeed a town, even if the shortage did evidence and of estoppel prevailing in not arise for the reasons laid down in each State. Articles 19 and 20 of Regulation No 120/67. Such an outcome would be With regard to the questions of illogical since it would prevent, for substance the Italian Government example, any remedial action: the considers that it is necessary to consider acquisition of stocks and their what the powers of the Community are distribution to those in a weak economic in the relevant sphere, particularly in position, which also affect prices. cases of disturbance of the market, that is to say, particular attention must be given The Italian Government recalls that the to Articles 19 and 20 of Regulation No Commission decided to prohibit exports 120/67. In its opinion it is clear from of durum wheat, which by no means such consideration that those powers resolved the Italian problem. It wonders relate exclusively to disturbances which whether the Commission could have affect the common market and the reduced the price to consumers. In this territory of the Community and which connexion the Government asserts that arise as a result of imports and exports. Article 103 of the EEC Treaty retains its Account must also be taken of the fact validity so long as there is no common that disturbances may also consist for economic policy in a sphere in which

JUDGMENT OF 22. 1. 1976 - CASE 60/75

short-term economic measures operate at In the course of the hearing the a different level from that of the Commission emphasized in particular production or marketing of wheat. It is that in the judgment delivered in Galli inconceivable that short-term economic the Court based itself on the existence of measures should be limited to industrial a common organization of the market products, ignoring the market in and that therefore it cannot be accepted agricultural products. that this judgment was exclusively based on the fact that the fixing of minimum The Italian Government concludes that prices could constitute an obstacle to the Commission has no power to adopt trade. regulations or to intervene in disturbances other than those for which The Advocate-General delivered his provision is made by the Community opinion at the hearing on 9 December rules. 1975.

Law

1 By an order of 2 May 1975 which was registered at the Court on 7 July 1975 the Pretore di Bovino submitted to the Court of Justice, pursuant to Article 177 of the EEC Treaty, various questions on the interpretation of Regulation No 120/67 of the Council of 13 June 1967 on the common organization of the market in cereals (OJ, English Special Edition 1967, p. 33).

The questions were referred in the context of an action initiated by an Italian producer of durum wheat against the State agency for intervention on the agricultural market (AIMA).

The producer claims that he has been injured by the actions of the AIMA in that it purchased large quantities of durum wheat on the world market and resold them to Italian producers of macaroni, spaghetti and similar products ('pasta products') at prices considerably below the purchase prices and indeed below the intervention price fixed pursuant to the provisions concerning the common organization of the market in cereals.

2 The purpose of this action, which was undertaken in the context of the anti-inflation policy of the Italian Government, was to provide supplies for the pasta industry at prices which would ensure that production was profitable despite the maximum prices imposed on the finished products at the wholesale and retail stages.

The action was taken at a period when prices on the world market were appreciably higher than prices fixed under Community rules, whereby all

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exports of durum wheat, Community production of which is insufficient to meet requirements, were prohibited to third countries.

It is clear from the file that, on the one hand, the resale price charged by AIMA to the pasta industry was approximately Lit. 13 000 per quintal, that is to say, it was below the target price of about Lit. 16 400 and indeed below the intervention price of about Lit. 15 000 and that, on the other hand, the plaintiff in the main action obtained a price of Lit. 17 000 per quintal for a quantity of durum wheat sold in January 1975.

3 In the first two questions the national court asks essentially whether the purchase of durum wheat by a Member State on the world market and its resale at prices below the purchase price, and even below the intervention price is compatible with the common organization of the market in cereals.

The third, fourth and fifth questions concern the individual position of traders in the event of unlawful interference by the State in the machinery of price formation prescribed by the common organization of the market and the consequences to be drawn if such interference were to result in an infringement of the rights accorded to those traders by Community rules.

4 These questions have been referred to the Court as a result of non- compulsory intervention by the State on the market in cereals, the aim of which was not to influence directly the formation of prices on that market but to check the rise in prices of certain foodstuffs made from durum wheat at consumer level.

5 Such intervention by a Member State is compatible with the common organization of the market in cereals only in so far as it does not jeopardize the objectives or operation of that organization.

Since one of the principal objectives of the organization is to guarantee to producers a price based on the target price this objective is jeopardized where the actions of the State agency are of such a nature as to influence conditions on the market and to induce a tendency to force prices below that level.

It must therefore be concluded that the action of a Member State in

purchasing durum wheat on the world market and subsequently reselling it on the Community market at a price lower than the target price is incompatible with the common organization of the market in cereals.

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6 This situation does not however imply that a specific producer can claim that he has suffered damage where he has sold his products above the target price, thereby obtaining the advantages which the regulation is intended to produce.

In fact under Community rules an individual producer may claim that he should not be prevented from obtaining a price approximating to the target price and in any event not lower than the intervention price.

Regulation No 120/67 is in fact intended to shield the development of Community agricultural production from fluctuations in world prices and thereby to ensure a fair standard of living for the agricultural community and to stabilize markets by means of Community levies and refunds, protecting the operation of the common agricultural market against the risks of the world market.

7 That regulation is therefore not intended to guarantee to persons concerned the right to profit from random market trends when the level of world prices exceeds that considered desirable for the attainment of the objectives of the common organization.

Consequently, an individual farmer may not claim that he has suffered damage under Community law if the price which he has actually obtained on the market exceeds the target price.

8 It is for the national court to decide on the basis of the facts of each case

whether an individual producer has suffered such damage.

9 If such damage has been caused through an infringement of Community law the State is liable to the injured party of the consequences in the context of the provisions of national law on the liability of the State.

Costs

10 The costs incurred by the Italian Government and by the Commission, which have submitted observations to the Court, are not recoverable. 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, costs are a matter for that court.

RUSSO v AIMA

On those grounds,

THE COURT

in answer to the questions referred to it by the Pretore di Bovino by an order of 2 May 1975, hereby rules:

The provisions of Regulation No 120/67 of 13 June 1967 on the common organization of the market in cereals must be interpreted to mean that:

(a) The action of a Member State in purchasing durum wheat on the world market and subsequently reselling it on the Community market at a price lower than the target price is incompatible with the common organization of the markets;

(b) Under Community rules an individual producer may claim that he should not be prevented from obtaining a price approximating to the target price and in any event not lower than the intervention price;

Community law it will be for the State, as regards the injured party, to take the consequences upon itself in the context of the provisions of national law relating to the liability of the State.

Lecourt Monaco Kutscher

Donner Mertens de Wilmars Sørensen Mackenzie Stuart

Delivered in open court in Luxembourg on 22 January 1976.

A. Van Houtte R. Lecourt

Registrar President