C-29/82

In Case 29 / 82

REFERENCE to the Court under Article 177 of the EEC Treaty by'the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry ] for a preliminary ruling in the appeal in a matter of administrative law brought before that court by

F . VAN LUIPEN EN ZN BV , The Hague ,

against a disciplinary measure adopted against it,

on the interpretation of Articles 30 to 34 of the EEC Treaty and Regulation ( EEC ) No 1035 / 72 'bf' the Council of 18'May'1972 oh the common organi­ zation of the market in fruit and vegetables (Official Journal , English Special Edition 1972 ( II ), p . 437 ),

VAN LUIPEN

The facts of the case, the course of the By that decision van Luipen was charged procedure and the observations sub­ with packing a consignment of tomatoes mitted under Article 20 of the Protocol bearing the quality description "Grade I" on the Statute of the Court of Justice of but not meeting the Grade I quality the European Economic Community requirements and with holding them for may be summarized as follows: sale by way of trade or business.

standards and may not be displayed or the Landbouwkwaliteitsbesluit at offered for sale, sold, delivered or the premises of members and to marketed in any other manner unless supervise compliance with the they conform to those standards. relevant provisions in force and Regulation (EEC) No 2638/69 of the (b) to pursue activities in addition to Commission of 24 December 1969 laying those referred to in paragraph down additional provisions on quality (1) and subparagraph (2) (a) control of fruit and vegetables marketed hereof with a view to promoting within the Community (Official Journal, trade in fruit and vegetables in English Special Edition 1969 (II), p. 611) accordance with guidelines laid provides for an inspection by sample to down for members by the Board. be carried out after notification of the consignment by the consignor prior to (3) The Bureau shall endeavour to attain dispatch from forwarding areas and, the objects described in pargraphs where inspection is carried out on (1) and (2) hereof without any view dispatch from the forwarding area, the to making a profit. issue of a certificate to accompany the (4) The Bureau shall pursue the objects goods. described in paragraphs (1) and (2) hereof by establishing and main­ The forwarding area is defined as the taining an appropriate inspection whole territory of the Kingdom of the service. Netherlands. The Community rules leave it to Article 4 Member States to designate the auth­ (1) Supervision of compliance with the orities responsible for carrying out the provisions adopted under or inspections provided for by the pursuant to the Landbouwkwali­ Community rules and as far as this case teitsbesluit shall be undertaken at the is concerned the authority designated by premises of members only. the Netherlands was the Kwali­ (2) (a) Inspections of fruit and teitscontrolebureau voor Groenten en vegetables as provided for in the Fruit [Quality Control Bureau for Fruit Landbouwkwaliteitsbesluit shall and Vegetables] (hereinafter referred to he undertaken on behalf of as "the Bureau"). members only. 3. The rules of the Bureau provide inter (b) Marks, symbols and certificates of alia as follows : the kind referred to in Article 8 ..." (2) of the Landbouwkwali- teitswet. [Law on the Quality of Article 3 Agricultural Produce] shall be (1) The object of the Bureau shall be to issued to members only. assist in raising the standard of quality (3) Without prejudice to paragraph (2) of fruit and vegetables produced in the hereof the Bureau may' pursue Netherlands and in particular to help certain other activities, including the to improve the quality of those undertaking of expert examinations products by carrying out inspections and the issue of reports, on behalf of and supervising compliance with the non-members in accordance with relevant provisions of law. guidelines laid down by the Board. (2) The Bureau shall have as its further objects: Article 5 (a) in the case of fruit and The Bureau shall admit as a member any vegetables of foreign origin, to person who applies to it in writing for j , carry out inspections pursuant to that purpose and who

(1) Any infringement of the provisions referred to in Article 7 shall be the Article 7 subject of disciplinary proceedings Each member shall: unless the Public Prosecutor decides to institute criminal proceedings. (a) observe strictly the provisions referred to in Article 3, the (2) The disciplinary proceedings provisions of these Rules, the mentioned in paragraph (1) hereof Inspection Rules, the other rules of shall be conducted before a the Bureau and the decisions disciplinary tribunal [Tuchtgerecht] adopted by the Board to implement composed of a presiding member those rules, which have been brought and two other members assisted by a to his notice or the notice of clerk. members in general and ensure that (3) The Board shall appoint the those provisions are complied with in members of the disciplinary tribunal his business; and adopt rules of disciplinary procedure having regard to the (b) use his best endeavours to make the general administrative measures inspection of the quality of fruit and referred to in Article 13 (3) of vegetables as provided for in the the Landbouwkwaliteitswet. The Inspection Rules as effective as aforesaid rules and any amendments possible; thereto shall be subject to the (c) pay the subscriptions and other fees approval of the Minister and the fixed each year in accordance with Minister of Justice. the relevant provisions of these Rules or any other rules; Article 10

(d) permit without reserve employees of (1) Where an infringement is found to the Bureau or persons charged with have been committed the disciplinary exercising the control referred to in tribunal may impose one or more of Article 31 to have access to any place the following measures: where fruit or vegetables or both are (a) a reprimand; received, kept, packed, sorted, offered for sale, sold, delivered, (b) a fine not exceeding HFL loaded for transport or unloaded; 10 000;

(d) publication of the disciplinary No 1035/72 only to members of that decision at the member's association incorporated under private expense. law, are incompatible with Regulation No 1035/72 and Articles 30 and 34 of the Treaty, bearing in mind that: (2) The Board shall put the proceeds from fines to a specific use which shall be approved by the Minister. The national rules provide that the Quality Control Bureau is under a duty « to accept as a member any person notifying it in writing of his wish to become subject to its supervision in It appears from the file on the case that accordance with its rules; the membership requirement contained in those rules of the Bureau is provided The national rules provide that the for in the relevant Netherlands legis­ supervision to which members of the lation, namely the Landbouwkwaliteits- Quality Control Bureau are subject wet, the Landbouwkwaliteitsbesluit under its rules consists exclusively in Groenten en Fruit [Quality of Agri­ checking that the provisions of Regu­ cultural Produce (Fruit and Vegetables) lation (EEC) No 1035/72 and No Order] and the Landbouwkwaliteits- 2638/69 are complied with and that the beschikking Keuring Groenten en Fruit Community quality standards adopted [Quality of Agricultural Produce pursuant to those regulations are (Inspection of Fruit and Vegetables) observed?" Qrder]. It also appears from the file that van Luipen is a member of the Bureau. 5. In pursuance of Article 20 of the Statute of the Court of Justice of the 4. In those circumstances the College European Economic Community written van Beroep voor het Bedrijfsleven observations were submitted by the decided to reserve its judgment on van appellant in the main action, F. van Luipen's appeal and to refer the Luipen en Zn BV, represented by H . J. following question to the Court of Bronkhorst, of the Bar of The Hague, by Justice: the Government of the Kingdom of the Netherlands, represented by F. Italianer, "Must Regulation (EEC) No 1035/72 Secretary General at the Ministry for and the provisions of the Treaty Foreign Affairs, acting as Agent, and by abolishing tariff and trade restrictions, in the Commission, represented by J.-F. particular Articles 30 and 34 abolishing Verstrynge, a member of· its Legal measures having an effect equivalent to Department, acting as Agent. quantitative restrictions on imports and exports, which must be regarded as By order of 29 June 1982 the Court forming an integral part of that regu­ decided, pursuant to Article 95 (1) and lation, be construed as meaning that (2) of its Rules of Procedure, to assign national rules of the kind described in the case to the Second Chamber. paragraphs 3 and 4 hereof stipulating that the acknowledgements of receipt and the certificates referred to in Regu­ Upon hearing the report of the Judge- lation (EEC) No 2638/69 are to be Rapporteur and the views of the issued by the Quality Control Bureau Advocate General the Court decided to designated as the checking authority open the oral procedure without any within the meaning of Regulation (EEC) preparatory inquiry.

1. Van Luipen observes first of all that Even though the Bureau is under the in order to be eligible for the certificates duty to accept as a member any person prescribed by the Community rules and applying for membership it appears from thus to be able to export to other the judgment of the Court of Member States as well as to non-member 15 December 1971 in Joined Cases 51 to countries a Netherlands exporter must be 54/71 International Fruit Company a member of the Bureau. [1971] ECR 1107 that any licensing system of a Member State which is a mere formality, inasmuch as any Citing the judgment of the Court of application is granted as a matter of 26 February 1980 in Case 94/79 Vriend course, is incompatible with Community [1980] ECR 327 van Luipen reminds the law and, as far as non-member countries Court that it has held that any national arc concerned, permissible only if auth­ rules "which makes the freedom of orized by the Community. traders to market, resell, import and export or offer for export .. . conditional Even if only a formality, compulsory on their being affiliated to a public body membership should be treated in the or a body approved by an official same way and because Regulation No authority" are not compatible with 1035/72 gives no power to Member Community law. States to apply measures of that kind in trade with non-member countries the obligation to affiliate is therefore The reason why Regulation No 1035/72 contrary to Article 34 of the Treaty and does not contain any express prohibition Article 22 of that regulation. of measures having an effect equivalent to quantitative restrictions on intra- Community trade is that the regulation Although the purpose of the national was adopted at the end of the rules is simply to ensure that Community transitional period when Article 30 et seq quality standards are complied with the became directly applicable and the crucial fact is that without authority previous regulation governing this sector from the Community rules the obligation had already abolished them. Moreover it to affiliate constitutes an obstacle to appears from the judgment of the Court trade. of 10 December 1974 in Case 48/74 Charmasson [1974] ECR 1383 that the rules on the free movement of goods Consequently van Luipen concludes that the rules in question arc not compatible have been expressly held to apply with Community law. unconditionally to agricultural products at the end of the transitional period.

competent to carry out public Secondly the Netherlands Government responsibilities is a matter left to the draws the Court's attention to the fact Member States, a fact which in the that the system of compulsory absence of rules of Community law is membership of the Bureau is an also confirmed by the case-law of the eminently effective method of applying Court, the obligation to affiliate must be Community rules on quality control. It considered an essential part of a system not only affords effective control of fruit whereby certain supervisory powers are and vegetables dispatched from the delegated to bodies constituted under Netherlands but also enables compliance private law. with the law to be enforced by means of disciplinary rules. According to the judgment of the Court of 16 December 1976 in Case 45/76 Comet [1976] ECR 2043, in the absence of any Community The Netherlands Government recognizes rules it is for the national legal order the similarities with the Vriend case cited of each Member State to designate previously but stresses nevertheless that the competent court. Moreover the important differences exist. disciplinary rules of the Bureau do not affect the right to appeal to the court ordinarily having jurisdiction, which was not the case in Vriend.

VAN LUIPEN

JUDGMENT OF 3. 2. 1983 — CASE 29/82

The Advocate General delivered her the deliberations. Owing to the death of opinion at the sitting on 28 October Judge Chloros the Second Chamber 1982. decided, by an order dated 22 November 1982, to re-open the oral proceedings At the sitting on 23 September the Court before the Chamber as newly constituted (Second Chamber) was composed of O. Due, President, Lord Mackenzie Stuart and fixed a date, 13 January 1983, for a and A. Chloros, Judges. second hearing at which the parties were not present. Article 27 (2) of the Rules of Procedure At the same sitting the Advocate General states that only Judges who were present confirmed her opinion delivered at the at the oral proceedings may take part in sitting on 28 October 1982.

Decision

1 By judgment dated 29 December 1981 which was received at the Court on 14 January 1982 the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry] referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 30 and 34 of the EEC Treaty and of Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organization of the market in fruit and vegetables (Official Journal, English, Special Edition 1972 (II), p. 437) to enable it to decide whether the obligation upon Netherlands fruit and vegetable exporters to become members of an inspecting authority incorporated under private law is compatible with those provisions.

2 The question was raised in an appeal brought by a Netherlands company before the College van Beroep voor het Bedrijfsleven against a decision by which a disciplinary tribunal (Tuchtgerecht) fined that company, as a member of the Kwaliteitscontrolebureau voor Groenten en Fruit [Quality Control Bureau for Fruit and Vegetables, hereinafter referred to as "the Bureau"], HFL 4 000 for packing a consignment of tomatoes in packaging bearing the quality description "Grade I" when the tomatoes did not meet the Community quality requirements for that grade and for holding them for sale by way of trade or business.

The national rules provide that the supervision to which members of the Quality Control Bureau are subject under its rules consists exclusively in checking that the provisions of Regulation (EEC) No 1035/72 and No 2638/69 are complied with and that the Community quality standards adopted pursuant to those regulations are observed?"

5 The common organization of the market in fruit and vegetables involves the adoption of common quality standards the application of which should have the effect, according to the fourth recital in the preamble to Regulation No 1035/72, of inter alia facilitating trade relations based on fair competition. • According to Article 8 of the regulation,· the task of ensuring that those standards are complied with is to be carried out by authorities appointed by each Member State.

JUDGMENT OF 3. 2. 1983 — CASE 29/82

6 Article 1 of Regulation (EEC) No 2638/69 of the Commission of 24 December 1969 laying down additional provisions on quality control of fruit and vegetables marketed within the Community (Official Journal, English Special Edition 1969 (II), p. 611) provides that all consignments for dispatch outside a forwarding area (for this purpose the whole territory of the Kingdom of the Netherlands constitutes a single forwarding area) must be notified by the consignor to the competent authority responsible for inspection which, depending on the case, must issue either a certificate of inspection or an acknowledgement of receipt to accompany the goods.

7 As the national court itself states in the question submitted, the national legislation by which the system of inspection is implemented in the Netherlands designates the Bureau as the sole checking authority for that purpose and in addition stipulates that the documents to be used as proof, such as the certificates of inspection and acknowledgements of receipt, are to be issued by the Bureau only to its members. Consequently any person wishing to export fruit and vegetables to other Member States must become a member of the Bureau.

n In the written observations which it submitted to the Court the Netherlands Government pointed out that, unlike the case in Vriend cited above, the common quality standards for fruit and vegetables constitute an exhaustive and complicated set of rules. To implement them effectively at the national level it is better to assign the task of checking that they are complied with to bodies already in existence, such as the Bureau and its disciplinary tribunal. As, under Netherlands law, the rules adopted by a body incorporated under private law as well as its disciplinary powers are binding only on its members, membership must be made compulsory. Since the Bureau is obliged to accept as a member any person notifying it in writing of his wish to become subject to its supervision and since, even under the Community rules, anyone wishing to dispatch fruit and vegetables outside the forwarding area must apply to the Bureau in any case, the obligation to affiliate is nothing more than a mere formality which is justified in relation to the objective pursued in the public interest.

12 However, that argument cannot be accepted. As the Netherlands Government has itself acknowledged, effective control can be established without an obligation of that kind and the Court has consistently held that considerations of an administrative nature cannot justify derogation by a Member State from the rules of Community law.

i3 The answer to the question submitted should therefore be that Article 34 to the EEC Treaty and the rules on the common organization of the market in fruit and vegetables do not allow national legislation to stipulate that an association incorporated under private law, designated as the sole checking

THE COURT (Second Chamber),

in answer to the question submitted to it by the College van Beroep voor het Bedrijfsleven by judgment of 29 December 1981, hereby rules:

Article 34 of the EEC Treaty and the rules on the common organization of the market in fruit and vegetables do not allow national legislation to stipulate that an association incorporated under private law, designated as the sole checking authority within the meaning of Regulation No 1035/72 of the Council of 18 May 1972, shall issue only to members of that association the acknowledgements of receipt and certificates of

VAN LUIPEN

inspection referred to in Regulation No 2638 / 69 of the Commission of 24 December 1969 laying down additional provisions on quality control of fruit and vegetables marketed within the Community.

Pescatore Due Bahlmann

1 — Translated from the French.