C-35/79

JUDGMENT OF 23. 1. 1980 — CASE 35/79

In Case 35/79

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunale Amministrativo Regionale del Lazio [Regional Administrative Court], for a preliminary ruling in the action pending before that court between

GROSOLI S.P.A.,

FIORUCCI CESARE S.P.A. AND EUROPORK S.P.A.,

ULTROCCHI S.P.A. AND M.A.R.R. S.P.A.,

on the interpretation of Council Regulation N o 2861/77 of 19 December 1977 (Official Journal 1977, L 330, p. 7) opening, allocating and providing for the administration of a Community tariff quota for frozen beef and veal falling within subheading 02.01 A l i b ) of the Common Customs Tariff (1978),

THE COURT

composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

GROSOU v MINISTRY OF FOREIGN TRADE

The facts giving rise to the case, the The decree by the Ministry of Foreign procedure and the observations Trade of 20 May 1978 (Gazzetta presented under Article 20 of the Statute Ufficiale of 25 May 1978 No 143) of the Court of Justice of the EEC may regulated the use by traders of the share be summarized as follows: allocated to Italy. This decree provided for allocation among the traders who had applied within 30 days after the publication of the decree, the economic I — Facts and p r o c e d u r e categories concerned having been defined in advance. Quotas expressed as a percentage of the total quota were Under the GATT agreements and the allocated to each of those categories. Geneva Protocol of 1962, the European The allocations were : Community undertook to authorize, upon favourable conditions, the import (a) 10% to the Ministry of Defence; of frozen beef and veal from non- member countries within annual "tariff quota" limits (originally 22 000 tonnes; (b) 10% to local consumer organizations then from 1973, 38 500 tonnes). The (these bodies are commercial public favourable conditions consist of undertakings active in the distri- exempting the goods from levies and bution sector); applying to them a uniform, consolidated common customs tariff rate of 20%. By (c) 8 0 % to undertakings active Council Regulation No 2861/77 of 19 commercially and industrially in the December 1977 (Official Journal 1977, frozen beef and veal sector. L 330, p. 7) the Community opened a Community tariff quota for frozen beef and veal for 1978, expressed as boned or These provisions were subsequently boneless meat, of 38 500 tonnes. This amendea by a Ministerial Decree of 22 quota was distributed between the June 1978 (Gazzetta Ufficiale of 23 June Member States and a total of 11 050 1978, No 174) by which retailers of tonnes was allocated to Italy. frozen beef and veal were included in category (c). The choice of a system to administer the quota shares is left to each Member The effect of the two decrees was that State. Article 3 (1) of Regulation No the 80% of category (c) was divided up 2861/77 states: between the various applicants according to the following criteria: "The Member States shall take all appro- priate steps to guarantee all persons — 3 0 % in equal shares; concerned, established within their territories, free access to the quota shares — 10% upon the basis of payments of allocated to them". value added tax (VAT);

— 60% was divided up as follows: June 1978, that the three specified categories of traders shall each have — 4 420 tonnes, in proportion to the individual access to three separate quantity of frozen beef and veal portions of the national share of the imported from non-member Community quota? countries in 1977; 3. Thirdly, can one of those pre- — 884 tonnes, in proportion to determined portions be assigned in purchases made from AIMA (the advance to one of the persons Italian intervention agency) upon concerned, albeit one with very the basis of Regulation No distinctive characteristics?" 2453/76 of 5 October 1976 * (purchases reserved only to retail butchers). The order making the reference was received at the Court Registry on 1 March 1979. Grosoli and Others challenged the Ministerial Decree of 22 June 1978 In accordance with Article 20 of the before the Tribunale Amministrativo Protocol on the Statute of the Court of Regionale del Lazio, claiming in Justice of the EEC written observations particular that it was incompatible with were lodged by Grosoli, represented by Regulation No 2861/77. Emilio Sivieri; by Fiorucci Cesare, represented by Leopoldo Cimaschi, of By an order of 4 December 1978 the the Genoa Bar, and Luigi Bonifazi, of Tribunale decided to stay the the Rome Bar; by Consorzio Italiano proceedings and under Article 177 of the Macellatori, Ultrocchi, M.A.R.R. and Treaty of Rome to refer the following S.C.I. (Società Italiana Carni) ali questions to the Court of Justice: represented by Piero Castellini, of the Padua Bar; by the Ente Comunale di Consumo, represented by Sebastiano " 1 . Is it possible to infer from Regu- Ferlito, of the Rome Bar; by the lation No 2861/77 and the other Government of the Italian Republic, regulations concerning the market in represented by its Ambassador, Adolfo meat, as well as from the Treaty, Maresca, acting as Agent, assisted by the that a 'management system' (as Avvocato dello Stato, Pier Giorgio Ferri; mentioned in the fourth recital in the and by the Commission of the European preamble to the said regulation) for Communities, represented by its Legal the national share of the quota based Adviser, Richard Wainwright, acting as on a number of criteria for Agent, assisted by Guido Berardis, of the apportionment corresponding to Commission's Legal Department. objective differences in the situations of the traders concerned is acceptable in so far as compatible Upon hearing the report of the Judge- with the principles of liberty and Rapporteur and the views of the equality to which reference has been Advocate General, the Court decided to made? open the oral procedure without any preparatory inquiry. However, the Government of the Italian Republic and 2. Secondly, can such criteria consist in the Commission of the European establishing in advance, as is the case Communities were invited to reply to with the Ministerial Decree of 22 certain questions put to them by the I — Official Journal 1976, L 279, p. 3. Court.

II — S u m m a r y of t h e written Equality of treatment and free access to observations lodged with the quota are linked to the parameter of the C o u r t the volume of imports into the different Member States from non-member countries during a sufficiently represen- tative period. It is in fact possible to Fiorucci Cesare S.p.A. first of all observes establish the concern of traders only that Article 1 of Regulation N o 2861/77 upon that single factor. defines the quota as "a Community . . . quota". This description also applies to As regards the second question, Fiorucci the national shares resulting from the Cesare refers to the judgment of the apportionment of the quota. Court of 12 December 1973 (Case 131/73, Grosoli [1973] ECR 1555) in which the Court held in particular that: In the absence of any specific provision in Regulation N o 2861/77 enabling each (a) meat imported under a GATT quota Member State to use this quota for cannot be subject to provisions its own purposes, the power of designed to govern the use to which administration conferred upon them can the allotted quantities are put; only be understood in a restrictive sense to mean the mere implementation of technical and procedural rules. (b) in the management of their shares Member States may not pursue national objectives of economic policy which are not expressly laid In order to answer the first question it is down by Community rules; first necessary to interpret the expression "persons concerned" introduced by Regulation No 2861/77 and substituted (c) at all events, the principle of equality for the expression "importers", which of treatment for Community citizens was used in previous regulations on the must be ensured. subject. The amendment of the wording is attributable to the desire to avoid wrong interpretations and not to any intention to make a substantial alteration Prior subdivision of the quota into shares of the meaning. In fact the Commission (expressed as a percentage) reserved for has always described those who effect certain categories not even founded on imports as importers whatever their name an objective parameter of reference or commercial form and irrespective of constitutes a clear and particularly whether or not they belong to any serious breach of the said principles. specific occupational category. Furthermore, whatever criterion is adopted as the basis for the apportionment, it is absolutely necessary All these categories — wholesalers, for it to be an objective criterion, placing industrialists or retailers — may all persons concerned on the same level. therefore have access to the quota, provided they satisfy the basic condition of being persons "concerned" with The reply to the third question may imports of frozen beef and veal from therefore be derived directly from the non-member countries. foregoing observations.

It refers to the judgment in Case 131/73 "(1) If the principle of free access to the (Grosoli, cited above) as evidence- that quota for all 'persons concerned' the option left by this Regulation to irrespective of the category to Member States concerns only the system which they belong (wholesalers, of administering the shares they receive, processors, retailers) — which is in other words, the technical and pro- irrelevant for the purpose of cedural rules needed to ensure that the determining that 'concern' — is limits of the quota are not exceeded and accepted, what needs to be that the principle of equal treatment of considered is not a number of Community citizens is upheld, both of apportionment criteria correspond- which are binding criteria laid down by ing to a presumed number of cate- Regulation N o 2861/77. The fact that gories but only one and the same the choice of a management quota criterion, identical for all, system is left to the Member States does consisting of the volume of imports not allow the option of limits or from non-member countries during conditions for access to the quota going a sufficiently representative period beyond the technical and procedural in the past; those imports cannot in rules apportioning the quota goods and any event constitute a basis for pursuing political and economic objec- discrimination as regards tives alien to the Community rules. apportionment; the activity to be taken into account for this purpose is purchases from intervention agencies, restricted to specific The effect of the preamble to the said traders, and to the exclusion of Regulation is that the fundamental rule other traders even if such of equal and continuous access to the restrictions have been fixed or quota for all persons concerned must be allowed, in one way or another, by considered against the background of the Community regulations. Community as a whole. This can be clearly seen from the express reference to "all persons concerned in the Community" * from the further extension (2) The apportionment criteria may not of the tariff quota to cover "all imports" consist in establishing in advance, of the product in question "in all as the Ministerial Decree of 22 Member States" and from the provision June 1978 does, that the three by which the rate for the tariff quota specified categories of traders shall should be applied "consistently" and each have individual access to three "until the quota is used up". separate portions of the national share of the Community quota. Hence the meaning of persons in the Community concerned in the quota must (3) A pre-determined portion may not be allotted to a single trader, even one with very distinctive charac- 1 — Translator's note: The words "in the Community" do not occur in the English text of Regulation No teristics." 2861/77.

necessarily be identical with that of bounds, amounts to an infringement of importers who prove by documentary the principle of the reservation of powers evidence that they are active in the belonging to the Community institutions. frozen beef and veal sector; indeed it is only upon this condition that it would be possible to envisage access to use of the quota which is not only free and equal The fixing of separate categories of but also continuous and uninterrupted. traders and access by them to quotas determined and allocated in advance exceeds the limits of the power of management conferred upon the Grosoli therefore thinks it was wrong for Member States. Such a solution is not the Commission to state in its reply of 23 just confined to determining the March 1978 to Written Question N o technical and procedural rules for 1117/77 by Mr Klinker (Official Journal apportionment but also pursues 1978, C 107, p. 32) that there were in objectives of national economic and principle no express restrictions to the social policy which are not intended by expression "all persons concerned". On the Community rules. the basis of this argument the Commission moreover stated that whilst acknowledging the need to prevent the involvement of large numbers of persons and the resulting fractionation of shares In conclusion, Grosoli thinks that the from cancelling out the economic impact questions submitted call for the following of the tariff quota, Member States were reply: nevertheless trying to extend as far as possible the number of persons concerned by this tariff quota and to ensure that the administration of the " 1 . Persons who, irrespective of any shares allocated to them was as neutral activity of their own (whether or not as possible. by way of trade or business) pursued within the territory of the Member States, have free, equal, continuous and uninterrupted access to the import of quantities covered by the This statement cannot, however, Community tariff quota opened for legitimize the practice ascribed to 1978 in proportion to activity proved Member States. to be pursued in the sector of the importation of frozen beef and veal are persons concerned in the Community. According to the principles affirmed by the Court (judgment in Case 131/73, Grosoli, cited above), when Member 2. In any event it is not permissible for States operate a management system in Member States, upon the basis of the the absence of special powers in order to power of management conferred determine more or less broad categories upon them by Council Regulation of persons concerned, they thereby No 2861/77, to determine their own exceed the limits of the powers conferred criteria for access to the quota by upon them by the Community regu- persons concerned in the lation. The existence of such a margin of Community in order to take account discretion, even if kept within reasonable of the personal characteristics or the

situations and activities of citizens imported frozen beef and veal from non- established within their territories; member countries; nor does it allow nor is it permissible for them to them to allocate percentages of the share decide that pre-determined cate- of the quota to those categories of gories shall have separate access to persons irrespective of whether or not special portions of the national share they have imported frozen beef and veal of the quota or for portions of such from non-member countries because the quota to be allocated in advance to a apportionment of the share must be for given trader." the benefit of those who import frozen beef and veal from non-member countries and in proportion to their The Consorzio Italiano Macellatori and imports in the course of the period under Ultrocchi, M.A.R.R. and S.C.I, submitted consideration. observations essentially along the same lines. It follows that any measure by a Member State to which a share of the quota is They think that Member States allocated, which does not comply with benefiting from the Community quota the principles expounded above, must apply the same apportionment contravenes the Council regulation criteria as those adopted by the allocating that quota." Community when it allocates the whole quota. The Ente Comunale äi Consumo di Roma thinks that the meaning of persons Consequently, persons concerned should concerned includes persons engaged in be understood to mean only those who retail sales who can prove that they have have imported and do import frozen beef a legitimate interest. The object of such and veal from non-member countries. an interpretation is to avoid protection- Each trader in the Community who ist, monopolistic or oligopolistic criteria obtains or arranges customs clearance and to ensure on the contrary greater for frozen beef and veal should be "freedom of access" which is more entitled to a quantity of the same suited to the requirements of the product covered by the quota in pro- principle of equal treatment. portion to the imports effected by him in the course of the period under According to the Ente Comunale the consideration. This criterion is the only principles to be drawn from the case-law one which may be applied to ensure that of the Court (the judgment in Case all Community traders receive the same 131/73, Grosoli, cited above) does not treatment. mean that a Member State does not have to adopt appropriate criteria under its They propose that the questions be own legal system which do not impair answered as follows: freedom of access but, on the contrary, promote it, according to methods and criteria complying with the objective in "EEC Regulation No 2861/77 opening, mind. allocating and providing for the administration of a Community tariff quota for frozen beef and veal does not It follows from the reply by the allow Member States to apportion the Commission to the written question of quota allocated to them between traders Mr Klinker (cited above) that a system or categories of traders who are not of "advance allocation" is to be importers and who have not in fact preferred which features a method of

administration taking account of the category of traders active in the meat various factual situations and the sector who, by being guaranteed requirements of those concerned in each exclusive access to the quota, would thus Member State. indirectly have the opportunity to create or consolidate a position necessarily akin to a monopoly situation. An objective of this kind would hardly be compatible Therefore it appears both practical and with the fundamental principle of legitimate to have several apportionment Community law contained in Article 3 criteria on the basis of the differentiation (f) of the Treaty which aims at the of the specific categories having institution of a system ensuring that individual access to separate portions of competition in the Common Market is the share of the quota allotted. The share not distorted. directly allotted to local consumer organizations conforms with the criteria adopted for "advance allocation" within the limits described above. Since this is a Regulation No 2861/77, on the unique and quite distinct category under contrary, made the quota subject to the Italian law there is no need to resort to rule of free access for all the persons subsequent processes of a technical and concerned. The administrative provisions procedural nature. adopted by Member States must therefore remain within the limits of the technical and procedural rules designed to ensure compliance with the general The Government of the Italian Republic terms of the quota and the principle of equal treatment for those entitled to take recalls that the judgment of the Court in advantage of it. Provided that the Case 131/73 (Grosoli, cited above) national measure, viewed in the light of distinguishes three types of Community the Community legislation, remains a quota as regards the system by which suitable means to the end sought, with they are applied: (a) quotas for which an objective, working link between the Community rules assign a particular use; two, the national authorities have not (b) quotas allotted as a whole to Member exceeded or evaded the limits of their States so that they may use them powers. according to their needs; (c) quotas which, not having been classified under one or the other of the categories quoted, must be understood as being capable of being used in accordance with Furthermore, if it is borne in mind that the principle of freedom of access for all Community legislation set precise limits the persons concerned. to the scope of national provisions yet none as regards the means ("all appro- priate steps"), then the discretion left to the State regarding the choice of the It is difficult to find justification in Regu- most suitable means has in no respect lation No 2861/77 for saying that Article been exceeded. 2 is intended to assign a particular use to the quota as in the case of (a). If the Community provision had intended reserving the quota solely to importers in The Italian Government in fact thought past years, then that must consequently fit to use the criterion of reference to imply an intention to protect a limited imports in previous years limiting the

apportionment to 4 0 % of the quota subdivided into as many portions as there allocated to Italy. It came to this view are criteria to apply. Such a situation is after noting that since an assessment simply the result of the impossibility of index was involved which was capable of making a direct comparison between benefiting only those persons who had traders supporting their application upon imported in previous years, the exclusive different criteria for apportionment. The use of such a criterion for the whole system adopted protects freedom of quota would make freedom of access access and equality of treatment whilst illusory for the other traders active in the enabling a valid comparison to be made, meat sector and interested in importing directly or indirectly, between all the during 1978; their exclusion would be applicants. The disadvantages are unjustifiable as has been said earlier. practically outweighed by the appro- priate determination of the quantities assigned to the different criteria for apportionment, such determination. having to take account, on a basis in It was for that reason that in addition to which experience has been given its due that criterion other parameters were used weight, of the incidence of the different for apportionment for the purpose of economic components taken as reference "measuring" the capacity and the data from among all the persons who are interest of importers other than regular concerned to gain access to the quota. importers provided that they proved they were "persons concerned" on the basis of factors other than that of having regularly effected imports in previous years. The reply to the last question follows from the foregoing observations; advance allocation to a single trader is objectively justified because he is a person whose position in relation to access to the quota cannot be adequately The Tribunale Amministrativo Regionale accommodated by criteria common to del Lazio, was quite right in holding that other applicants. "on the basis of the contested ministerial decree it is reasonable to hold that the administration has adopted differing criteria for apportionment in view of objective differences in kind between the In conclusion the Italian Government persons concerned . . . and of the considers that the provisions of the presumed absence of a single criterion ministerial decree which gave rise to the capable of ensuring a reasonable questions raised constitute all appropriate balancing of the conflicting interests in steps to achieve the intended object of accordance with the principles of free ensuring all persons concerned free access and equality of treatment". access to the share of the Community quota allocated to Italy.

There are in principle no precise limits to the concept of "all persons concerned": Consequently, a general delegation of in theory, whoever shows his interest in powers of management of a quota to importation by his application for access Member States enables them to to the quota is to be considered as a determine technical and procedural rules "person concerned" in the sense of the needed to ensure general compliance provision in question. Nevertheless, such with the terms of the quota and to a wide interpretation of the concept of guarantee equality of treatment for those "person concerned" is likely to provoke entitled to take advantage of it but not to innumerable applications leading to the adopt conditions of access to the quota multiple subdivision of the quota which whose objectives of economic policy are would be uneconomic in view of the not the subject of Community provisions. limited nature of the quota.

It follows that it is not unlawful to Article 3 (1) of Regulation No 2861/77 regard the State's power of management merely effects a general delegation of as including the right to determine the administration. National measures must, categories of traders who, on the basis of in the words of Article 3, guarantee free technical and economic assessments, access to quota shares to all persons seem to be objectively interested in the concerned: that is the most important import upon favourable conditions, of condition with which Member States frozen beef and veal. To the extent to must comply when administering their which the determination of the cate- share. gories concerned meets a valid economic

In this case it is clear that equality of The criterion based on imports, as used treatment for traders is adversely by the Council for the apportionment of affected. Some are subject to selection the quota between Member States, according to specific criteria, whilst should not necessarily be transposed as it others are exempt from those criteria and stands to the national level. are entitled to allocations fixed in advance: the Commission points out that the local consumer organizations in fact If not correctly adapted to the circum- receive a fixed share which they must stances, this criterion is likely to make redistribute amongst themselves permanent situations which have already according to the number of inhabitants arisen by excluding, in particular, traders in each locality, whilst a body such as who have become engaged for the first the Ministry of Defence is yet more time in the relevant sector; this would favoured inasmuch as it is simply not accord with the spirit of equality allocated an exclusive share reserved to which typifies both general and specific itself alone. Community rules.

Analogous reasoning applies also to the On the other hand the Commission allocation of 80% of the total share to thinks that in principle the adoption of commercial and industrial undertakings different criteria for apportionment must and retailers. not be ruled out since the situations of the various parties concerned cannot be Here criticism is levelled not so much objectively compared. The problem is to against the pursuit of objectives of find a common denominator for all those

Ill — Oral procedure At all events any criteria considered should not be designed to pursue, either directly or indirectly, objectives of national social or economic policy which At the sitting on 20 November 1979 are not expressly laid down by Grosoli, represented by Emilio Sivieri of Community rules. the Rome Bar, Fiorucci Cesare, represented by Leopoldo Cimaschi of the Genoa Bar, the Consorzio Italiano Macellatori and Ultrocchi, M.A.R.R. and In conclusion the Commission thinks S.C.I., represented by Piero Castellini of that the questions referred to the Court the Padua Bar, the Ente Comunale di by the Tribunale Amministrativo Consumo di Roma, represented by Regionale del Lazio, require the following answers: Sebastiano Ferlito of the Rome Bar, the Government of the Italian Republic, represented by the Avvocato dello Stato, Pier Giorgio Ferri, acting as Agent, and " 1 . Regulation No 2861/77 opening, the Commission of the European allocating and providing for the Communities, represented by Richard administration of a Community tariff Wainwright, acting as Agent, assisted by quota for frozen beef and veal Guido Berardis, presented oral falling within subheading argument.

JUDGMENT OF 23. 1. 1980 — CASE 35/79

Decision

1 By an o r d e r of 4 D e c e m b e r 1978, received at the C o u r t o n 1 M a r c h 1979, the Tribunale Amministrativo Regionale del Lazio, referred to the C o u r t under Article 177 of the E E C T r e a t y three questions o n the interpretation of Council Regulation N o 2 8 6 1 / 7 7 of 19 D e c e m b e r 1977 o p e n i n g , allocating and providing for the administration of a C o m m u n i t y tariff q u o t a for frozen beef and veal falling within subheading 02.01 A l i b ) of the C o m m o n Customs Tariff (1978) (Official J o u r n a l L 330, p. 7).

GROSOLI v MINISTRY OF FOREIGN TRADE

2 Regulation No 2861/77 opens a Community tariff quota for frozen beef and veal totalling 38 500 tonnes expressed as boned or boneless meat for 1978. Article 2 distributes this volume between the Member States, allocating a share of 11 050 tonnes to Italy.

3 The fourth recital in the preamble to the Regulation states that since the tariff quota in question is relatively small it ought to be possible to provide for a system of allocation based on a single apportionment between the Member States, without thereby derogating from its Community nature and that it appears best to leave to each Member State the choice of a management system for its share of the quota. Article 3 of the Regulation provides that Member States shall take all appropriate steps to guarantee all persons concerned, established within their territories, free access to the quota shares allocated to them.

JUDGMENT OF 23. 1. 1980 — CASE 35/79

categories of traders each having individual access to three separate portions of the national share of the Community quota.

6 First of all it should be recalled that in 1962 the Community undertook under the General Agreement on Tariffs and Trade (GATT) to open each year a Community tariff quota for frozen beef and veal from non-member countries consolidated at a duty of 20%. The quotas in question are opened each year by Council regulations which determine their apportionment between the Member States and, using roughly similar terms, leave the management of the shares allotted to the authorities of the Member States.

7 In its judgment in Case 131/73 of 12 December 1973 (Grosoli [1973] ECR 1555) which concerned the interpretation of Council regulations on the opening of Community tariff quotas of frozen beef and veal for 1968 and 1969, the Court has already had occasion to state that the management of the shares was left to the Member States to apportion them according to their own administrative provisions but that reference by the regulations to such provisions could not be interpreted as extending the technical and pro- cedural rules designed to ensure compliance with the general terms of the quota and the principle of equal treatment for those entitled to take advantage of it.

8 That interpretation, which sets out the limits of the power delegated to Member States to adopt administrative measures is also valid for Regulation No 2861/77 which opens the Community tariff quota for 1978. It is to be noted in this regard that Council Regulation N o 3063/78 of 18 December 1978 opening the Community tariff quota for 1979 (Official Journal L 366, p. 6) also leaves the choice of the management system for the shares to the Member States whilst stating in the recitals in the preamble that such a system should ensure both equal and continuous access to the quota for all persons concerned and an allocation which is appropriate from an economic viewpoint.

ii Whilst it is consequently true that regular importers of frozen beef and veal cannot be disqualified from access to the national share of the quota, they are not necessarily the only traders interested in the meat imported upon favourable conditions. It is essential to state in this regard that the concept of "persons concerned" in Article 3 of Regulation N o 2861/77 has a wider scope than that of "importers" concerned referred to in previous regulations, for example in Article 3 of Council Regulation N o 3167/76 of 21 December 1976 opening the Community tariff quota for frozen beef and veal for 1977 (Official Journal L 357, p. 14).

i2 The answer to the first and second questions of the Tribunale Ammini- strativo should therefore be that neither Regulation N o 2861/77 nor other rules of Community law preclude a management system for the national share of the Community tariff quota for frozen beef and veal based upon a number of criteria to define the different categories of traders and to fix the

JUDGMENT OF 23. 1. 1980 — CASE 35/79

total amounts to which each of the categories is to have access, provided that such criteria are not determined in an arbitrary way and do not result in depriving some of the persons concerned of access to the share in question.

n By its third question the national court wishes to know whether a part of the national share, determined in advance on the basis of a criteria for apportionment, may be allotted in advance to a single trader even one with especially distinctive characteristics.

H It follows from the considerations put forward in relation to the first two questions that the answer to the third question must be in the affirmative so long as the position occupied by the trader in question is determined in accordance with criteria held compatible with Community law. The fact that under national law one category of traders consists of a single large-scale trader is not sufficient by itself to prove that the criteria adopted by that national law are arbitrary. The answer to the third question is therefore covered by that given to the first two questions.

G R O S O U v MINISTRY OF FOREIGN TRADE

tariff quota for frozen beef and veal based upon a number of criteria to define the different categories of traders and to fix the total amounts to which each of the categories is to have access, provided that such criteria are not determined in an arbitrary way and do not result in depriving some of the persons concerned of access to the share in question.

Kutscher O'Keeffe Touffait Mertens de Wilmars Pescatore

Mackenzie Stuart Bosco Koopmans Due

Delivered in open court in Luxembourg on 23 January 1980.

A. Van Houtte H. Kutscher Registrar President