C-222/82

APPLE AND PEAR DEVELOPMENT COUNCIL v LEWIS

In Case 222/82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tunbridge Wells County Court for a preliminary ruling in the proceedings pending before that court between

APPLE AND PEAR DEVELOPMENT COUNCIL

and

K. J. LEWIS LTD AND OTHERS

Facts and Issues The facts of the case, the course of the I — Facts and written procedure procedure and the observations sub- mitted under Article 20 of the Protocol The Apple and Pear Development on the Statute of the Court of Justice of Council (hereinafter referred to as "the the EC may be summarized as follows: Development Council") was established

JUDGMENT OF 13. 12. 1983 — CASE 222/82

under the Apple and Pear Development thereafter, the Minister is nevertheless Council Order of 6 May 1980 (Statutory required to review the question whether Instrument 1980 No 623, hereinafter a development council should remain in referred to as "the 1980 Order"), as being and, if so, whether the relevant amended by the Order of 17 December order should be amended. The Minister 1980 (Statutory Instrument 1980 No is required to hold wide-ranging consul- 2001). The 1980 Order replaced the tations with those affected by the order. Apple and Pear Development Council (Section 8 (3) of the 1947 Act). Order of 1966. The two orders in question were adopted under the Industrial Organization and Develop- ment Act 1947 (hereinafter referred to as In 1966 growers of apples and pears, "the 1947 Act"). represented by the National Farmers' Union, took the initiative in approaching the Minister to ask him to establish a Pursuant to Section 1 (1) of the 1947 Act development council for apples and pears the Minister of Agriculture, Fisheries and under the 1947 Act. Food (hereinafter referred to as "the Minister") may make a "development council order" in respect of an industry where it appears to him to be expedient Since the requirements of the 1947 Act were satisfied the Minister acceded to the growers' request and made the Apple and Pear Development Council Order "to increase efficiency or productivity in 1966 (Statutory Instrument 1966 No the industry, to improve or develop the 1579) which was duly approved by both service that it renders or could render to Houses of Parliament and came into the community, or to enable it to render operation on 23 December 1966. such service more economically".

two members with special knowledge of 6. Promoting or undertaking research marketing and distribution. for improving arrangements foi- marketing and distributing products. According to the Schedule to the 1980 Order the functions of the Development 7. Promoting or undertaking research Council are as follows: into matters relating to the con- sumption or use of the products of the industry. " 1 . Promoting or undertaking scientific research. 8. Promoting arrangements for coop- erative organizations for supplying 2. Promoting or undertaking inquiry as materials and equipment, for coordi- to materials and equipment and as to nating production, and for market- methods of production, management ing and distributing products. and labour utilization, including the discovery and development of new materials, equipment and methods 9. Promoting the development of and of improvements in those export trade, including promoting already in use, the assessment of the or undertaking arrangements for advantages of different alternatives, publicity overseas. and the conduct of experimental establishments and of tests on a commercial scale. 10. Promoting or undertaking arrange- ments for better acquainting the public in the United Kingdom with the products of the industry and 3. Promoting the production and methods of using them. marketing of standard products.

11. Promoting or undertaking the col- (a) Advising persons who participate lection and formulation of statistics. in any scheme for promoting the production and marketing of standard products as to the 12. Undertaking arrangements for mak- prices at which they should ing available information obtained, endeavour to sell such products, and for advising, on matters with and undertaking inquiry for the which the Council are concerned in purpose of enabling the Council the exercise of any of their so to advise. functions."

The necessary machinery for the fair and accurate application of the levy to all Expenditure on Year Levy income due advertising, promotion growers in respect of the land which they and publicity occupy is provided for by certain provisions of the 1980 Order. That 1976/77 UKL 277 959 UKL 189 276 machinery comprises : 1977/78 UKL 241 346 UKL 155 191 (i) The obligation to the grower to 1978/79 UKL 347 980 UKL 293 748 register under Article 7 (1) and 1979/80 UKL 346 984 UKL 253 035 upon the Development Council to 1980/81 UKL 633 356 UKL 420 542 effect registration under Article 6 (i); (ii) The obligation under Article 11 The advertising and promotion carried upon any person carrying on out by the Council includes some business in the industry to furnish a television advertising (a recent popular written return, if required by the slogan being "Polish up your English"), Development Council, for the press advertising (mainly women's purpose of the recovery of the magazines and the like) and the charges; provision of point-of-sale and in-store merchandising and promotional material. (iii) The penalties provided under Article Such advertising promotes varieties 12. grown in England and Wales such as Cox, Bramley, Worcester Pearmain and By virtue of Article 2 (b) of the Conference pears. Apple and Pear Development Council (Amendment) Order 1980, the Devel- With regard to the promotional activities opment Council may, in financing itself, of the Development Council the have recourse not only to the "Kingdom Scheme" should also be compulsory annual charge, but also to mentioned. The scheme was launched in contributions paid by participants in any 1980 with the aim of improving the optional scheme. standards and presentation of apples and

Annex 3 to the observations of the United Kingdom shows that the Kingdom Scheme was notified to the By letter of 17 August 1981 Mr Poul Commission which intimated that it had Dalsager, a Member of the Commission no comments to make but reserved the of the European Communities, notified right to return to the matter when it had Mr James Scott Hopkins, a Member of completed its examination of that form the European Parliament, that the levy of aid in relation to Article 93 (1) of the on registered growers was not barred by EEC Treaty. Articles 12 and 95 of the Treaty and that the measures adopted by the Development Council were not contrary to the provisions of Community law. According to the annual reports of the Nevertheless the Commission reserved Development Council other tasks un- the right subsequently to make a ruling dertaken by it include research, surveys, on the compatibility of the aid financed public relations, the collection of infor- by "parafiscal" charges with Article 92 mation and similar activities. (3) of the Treaty.

According to the 1980 Report the The Development Council instituted civil objectives of the Information Group are proceedings before the Tunbridge Wells to maintain a constant check on the County Court, claiming that three quality standards achieved by English growers should be ordered to pay it the growers with fruit sent for sale. Thus charge due for the financial year the 1981 Report of the Development 1980-81. The defendants submitted by Council states: way of counterclaim that the annual charges paid by them since 1 January 1973 should be refunded to them. They "As in the previous year, with a view claimed that the continuation of the to ensuring that fruit offered for sale Development Council was contrary to

Question 1 (iv) permitting the Development Coun- Do Articles 30 and 34 and/or 38 to 47 cil to levy upon growers liable to of the EEC Treaty and/or Articles 42 register a compulsory annual charge and 60 (1) of the Treaty of Accession based upon the area of land and/or Regulation (EEC) N o 1035/72 occupied by them for the purpose of the Council as amended preclude a of business in the industry to enable Member State from adopting and/or the Development Council to meet maintaining by law measures their administrative and other expenses, (i) establishing and/or continuing in part of that Member State a body and/or (hereinafter referred to as "the Development Council") having the constitution and/or the functions (v) exempting from the measures set out in United Kingdom S.I. growers occupying less than two 1966 N o 1579 and/or 1980 N o hectares of land or land planted 623, with less than 50 apple or pear trees? and/or

If any such measure as is described in (iii) in deciding whether to order Question 1 or any part of such a restitution of any of the annual measure is incompatible with any one or charges paid by a grower is the more of the provisions of Community court of the Member State entitled law referred to in Question 1, is the to take into account that the money provision of Community law with which raised by the annual charges has any such measure or part of such been used by the Development measure is incompatible of direct effect Council for purposes from which within the Member States of the the grower has and/or might have Community so as to confer upon derived a benefit? individuals Community rights enforce- able in the court of a Member State, and Question 4 if so, If any such measure as is described in (i) is that provision of Community law Question 1 or any part of such measure capable of being raised by a grower is incompatible with Article 30 or 34 of as a defence to a claim by the the EEC Treaty did such conflict arise Development Council for the said on the date referred to in Article 42 of annual charge and if so is such the Treaty of Accession or the date provision of Community law referred to in Article 60 (1) thereof? capable of being a complete or only a partial defence thereto and if only The order making the reference was partial how should such part be received at the Court Registry on 24 determined, June 1982.

First question In the Groenveld case the Court placed a narrower interpretation upon Article 34 The observations submitted to the Court than that which it adopted regarding concern not only whether the establish- Article 30 in the Dassonville case. In the ment of the Development Council and Groenveld case the Court stated that the methods of financing its activities are Article 34 "concerns national measures compatible with Articles 30 to 34 and 38 which have as their specific object or to 47 of the EEC Treaty, with Articles effect the restriction of patterns of 42 and 60 of the Act of Accession and exports" and it further laid down the with Regulation (EEC) No 1035/72 of requirement of a difference in treatment the Council of 18 May 1972 on the between domestic trade and export trade common organization of the market in and that the trade of other Member fruit and vegetables (Official Journal, States should be adversely affected. The English Special Edition 1972 (II), p. 437) Development Council considers that but also whether other provisions of the there is no reason why the Groenveld test Treaty, in particular Articles 92 and 93, should not apply mutatis mutandis to have been infringed. An appropriate Article 30. subdivision has accordingly been made in the following summary. The Development Council emphasizes that it is merely an advisory, research and promotional body with no power to 1. Articles 30 and 34 of the EEC Treaty intervene in the market or to enforce rules as to marketing, prices or production and notes that, even on the The Development Council points out broad approach adopted in the that, since no allegation has been made Dassonville case, it is inconceivable that that there are quantitative restrictions on it as an organization, or any of its either imports or exports, it is only measures or powers could amount, necessary to consider the alternative, indirectly or potentially, to an obstacle namely whether there exist "measures or hindrance to exports. The position having equivalent effect". becomes even clearer if the more "narrow" Groenveld test is applied. Not With regard to Articles 30 and 34 the only would it be wholly unfounded to Development Council cites certain suggest that the "specific object or decisions of the Court, in particular the effect" of the Development Council and judgment of 12 July 1974 in Case 8/74 its activities is to restrict the pattern of Dassonville [1974] ECR 837 which exports of apples and pears, but there concerns imports and relates to Article could not possibly be shown to exist the 30 of the Treaty, and the judgment of necessary additional factor of resultant 8 November 1979 in Case 15/79 discrimination between the domestic

trade and the export trade in apples and there are no grounds for the claim that it pears or the prejudice thereby caused to accords different treatment to the other Member States. The Development domestic trade and the import trade in Council considers it quite clear that its apples and pears, emphasizing once functions relate indiscriminately to all again that its powers are wholly confined production in England and Wales, to the national product. There is irrespective of whether it is to be therefore no question of any prejudice to exported or consumed domestically. In the production or trade of any other this connection it refers to paragraph 11 Member State. of the decision in the Holdijk case. Finally, the Development Council argues The Development Council further states that, whilst the use by the Court of that domestic production of apples and Justice in the Dassonville case of the pears in the United Kingdom is capable words "all trading rules" is clearly not of supplying only about 4 0 % of the definitive, it gives a reasonable indication whole market so that, in its view, there is of the proper sphere of operation of no realistic prospect of establishing a Articles 30 and 34. Viewed in that light significant export trade in the near none of the activities of the Development

Article 30. The powers and functions of Advocate General in Case 177/78 Pigs the Council extend only to growers and Bacon Commission v McCarren established in England and Wales and [1979] ECR at pp. 2209 and 2210, that it their products. Exporters in other cannot constitute a "measure having Member States are entirely free to place equivalent effect" since those cases show apples and pears on the United Kingdom that pecuniary barriers to trade should be

The same result is obtained by applying the The Development Council also refers to decision in Groenveld, both with regard the judgment of 10 March 1981 in to Article 30 and to Article 34. The Joined Cases 36 and 71 Irish Creamery Development Council considers that Milk Suppliers' Association [1981] ECR

The Development Council thus considers Finally, the Development Council does that the charge is unlawful only if it not see how the tenuous and incidental allows the financing of activities which connection between it and the State can themselves are unlawful. In view of the transform a lawful and indeed laudable fact that most of the funds raised by the activity by growers, which is fully annual charge are spent on promotion compatible with the "essential objec- and publicity with a view to maintaining tives" of the market organization, into a and increasing consumer-awareness of measure having equivalent effect to a English apples and pears the Develop- quantitative restriction on imports or ment Council considers that the charge is exports. It is self-evident that the apple fully compatible with the rules of and pear market forms a minute segment Community law as set out in the of the economy. decisions of the Court (see Geddo, cited above): In this connection the Develop- ment Council also relies upon the judgment of 26 June 1979 in Case 177/78 Pigs and Bacon Commission v In this connection the Development McCarren [1979] ECR 2161 in which the Council also refers to Commission Court accepted implicitly that the purely Directive 70/50/EEC of 22 December promotional purposes for which the 1969 based on the provisions of Article national authority also used the levy in 33 (7) on the abolition of measures question were acceptable under Com- which have an effect equivalent to munity law, which was furthermore the quantitative restrictions on imports and view taken by the Advocate General in are not covered by other provisions that case (see page 2214). Finally the adopted in pursuance of the EEC Treaty Development Council emphasizes the (Official Journal, English Special Edition difference which exists between the 1970 (I), p. 17), and in particular to present case and the judgment of 10 July Article 2 (3) (k) thereof. Even if it were 1980 (Case 152/78 Commission v France accepted that that directive was directly [1980] ECR 2299). applicable and the Development Council could be properly described as a "public authority" its activities would not amount to encouragement for the pur- poses of the directive. If that were the The Development Council goes on to case there would not be a sufficient state that it has no power to impose causal connection between such encour- restrictions of any kind or to affect in agement and the behaviour of con- any other way the freedom to import or sumers.

The United Kingdom states in its obser- but of all the provisions of the Treaty vations that the essential issue raised by which it considers relevant, that it the first question is the validity of the appears clear that the levy at issue in this compulsory levy. Therefore, the United case could not be challenged in the Kingdom first provides an analysis in national courts. order to establish whether such a levy is contrary to the relevant provisions of the Treaty before proceeding to consider the In its written observations, the Com- essential problems to which it gives rise mission does not expressly set out its in connection with the common organ- views on the question whether there has ization of the market. been an infringement of Articles 30 to 34 but examines the application of Articles The United Kingdom takes the view that 92 and 93 and considers the discrimi- the levy is not contrary to Articles 12, 16 natory effect which may be produced by or 95 of the EEC Treaty and, on the promotion of sales of domestically- basis of the judgment of the Court of 22 produced pears and apples alone. March 1977 in Case 78/76 Steinike mid Weinlig [1977] ECR 595, that the levy must in principle be regarded as part of a The Danish Government docs not make system of aid to which Articles 92 to 94 specific reference to Articles 30 and 34 of the Treaty apply; it then considers of the Treaty in its written observations. Articles 30 and 34 of the EEC Treaty in It indicates, however, that one of the closer detail, noting that the judgment of conditions for acceptance under Com- 22 March 1977 in Case 74/76 [1977] munity law of a system such as that with ECR 557 Iannelli & Volpi appears which this case is concerned is that it clearly to indicate that measures which must not hinder the free movement of are of a fiscal nature or which comprise goods. a system of aid do not ordinarily fall

(pp. 875 to 879). Bacon Commission v McCarren, cited above, and the judgment of 29 November 1978 in Case 83/78 Pigs Finally, the United Kingdom states that Marketing Board [1978] ECR 2347 and it could not be validly suggested that the observes that Article 40 of the Treaty levy in this case satisfies the test laid must be interpreted and considered in down in Oebel, cited above, in which conjunction with the regulation on the (at p. 2009) the Court confined the application of Article 34 to "national common organization of the market in measures which have as their specific the product in question and with the object or effect the restriction of patterns provisions of the Treaty on the abolition of exports". of tariffs and commercial barriers, which provisions must be regarded as an integral part of the common organiz- The United Kingdom concludes, from an ation of the markets.

JUDGMENT OF 13. 12. 1983 — CASE 222/82

APPLE AND PEAR DEVELOPMENT COUNCIL v LEWIS

60/75 Russo [1976] ECR 45), of 23 The Development Council next January 1975 (Case 51/74 Van der compares the "essential objectives" of Hulst's Zonen [1975] ECR 79), of 23 Regulation No 1035/72, as amended, January 1975 (Case 31/74 Galli [1975] with its own activities and makes the ECR 47) and of 18 May 1977 (Case following observations. 111/76 Van den Hazel [1977] ECR 901) and the Buys, Pigs Marketing Board and Pigs and Bacon Commission cases cited above. Achieving a balance between supply and demand In those cases the national measure of which complaint was made fell into one or other of the following categories : According to the Development Council several of its functions are related to (i) Measures having the effect of a supply and demand. None of these in production quota for a product any way conflicts with the Community subject to common organization of objectives; rather they are complemen- the market; tary. Moreover, no steps taken by the Development Council relating to these (ii) Measures forbidding the producer matters has or could in any way hinder to trade unless such trading was the functioning of Community done through a particular body; machinery in this area. Indeed the advisory functions of the Development (iii) Measures which restrict in other Council, in so far as they assist in in- ways the ability of the producer to creasing efficiency in production and trade freely; marketing and in ascertaining consumer preferences, further the Community (iv) Measures interfering with the price interest. formation machinery of the common organization;

Encouragement of specialization in the promotion of the production and Community marketing of standard products. It is recognized by the Development Council that growers must be reminded of the importance of maintaining quality The Development Council states that the standards so as to ensure that apples and principal United Kingdom varieties of pears grown in England and Wales and both apples and pears are distinctive in quality and in flavour. It is in the offered for sale are comparable in interests of consumers throughout the quality, presentation and packaging to Community that these varieties should imported fruit. Some of the steps taken survive commercially and many of the by the Development Council to assist in Development Council's advisory and this are described in Paragraph 7 of the promotional activities are intended to Council's Report for the year ended 31 achieve that result. March 1980. One of the initiatives mentioned in that paragraph was the setting up in May 1979 of an Infor- mation Group consisting of growers In reply to the questions submitted by and representatives of other interests in the Court the Development Council the industry. In this connection the stated that the promotional campaigns Development Council states that one of ("the Friends of the Cox" and "the Bramley Queen Contest") were of very the functions of that Group is to little significance in the context of the discourage growers from marketing general promotional activities of the immature fruit and it observes that the Development Council. As a rule, the Community regulations, which have the Development Council's advertising is same aim in view, provide for an increase generic. in the normal Community minimum sizes for a specified period at the beginning of each season. The government of each Member State may choose whether or not to accept this derogation and is also The adoption of common standards free to extend the specified period if appropriate for its area of the Community. In respect of varieties not In this connection the Council invokes covered by those EEC regulations, the the Vriend judgment, cited above, in Information Group recommends mini- which the Court implicitly accepted the mum sizes for the same periods and in Commission's argument that national very exceptional circumstances the measures intended to promote the Group recommends that in respect of a quality of a product pursue precisely the variety covered by the EEC regulations same objective as the regulation on the the period of derogation specified in the common organization of the market in regulation in question be extended where the sector in question. Furthermore, the this is desirable in view of local circumstances in the Vriend case differ conditions. These recommendations are from those of the Development Council, based on the same principles as the which has no power to enforce legally Community regulations in so far as they binding standards and may only provide increase the minimum sizes but do not in encouragement. any way conflict or even overlap with the Community's sphere of operation. The recommendations are without any The function mentioned in Paragraph 3 binding force and in issuing them the of Schedule I to the 1980 Order is the Group takes the opportunity of

Promotion and the organization of the market With regard to the Vriend case cited above the Development Council claims that in that case, by contrast with the The Development Council considers that present case, the obligation to register there are no grounds for any allegation was such that traders who failed to that those activities are capable of register and who were not producers, undermining, creating exceptions to or where prohibited from carrying out otherwise jeopardizing the common commercial transactions in any form organization of the markets in that whatever and that compulsory affiliation sector. Regulation No 1035/72 itself is to an official supervisory body carried silent as to publicity save in so far as its with it the obligation for its members to encouragement of the creation of comply with the rules and general in- producers' organizations implicitly ap- structions issued by the supervisory body. proves the promotional ventures in which Furthermore, in the Vriend case the such organizations would engage. Fur- rules in question conferred a trading thermore, the activities of the Develop- monopoly on affiliated producers. In the ment Council are part and parcel of the present case growers are at liberty to "fair competition" and "specialization" carry on their business as they please and included in the list of objectives of that the requirement of registration does not regulation. affect in any way the quantity of apples and pears available on the market.

Furthermore in other Member States there are State-subsidized bodies which The Development Council declares that organize publicity campaigns abroad, for in those circumstances the obligation to

register must be regarded as wholly a above, the United Kingdom considers matter of administrative convenience that a national measure is incompatible connected to the payment of the annual with the common organization of the charge and the making of returns. The markets if it undermines or creates Development Council considers that, if exceptions to, or jeopardizes its aims and its other functions are not incompatible functioning. with Community law, the obligation to register is likewise not incompatible. According to the United Kingdom the essential question is whether a national Finally, with regard to the exemption compulsory levy to finance promotional from the national measures which is activities for apples and pears is so afforded to growers occupying less than clearly incompatible with Regulation N o two hectares of land or land planted with 1035/72 that individuals may invoke less than 50 apple or pear trees, the such incompatibility in the national Development Council submits that such courts. an exemption accords with common sense, good administration and with the principle of proportionality and that it cannot constitute discrimination so as to In that regard, the United Kingdom contravene Article 40 (3) or any other observes that the Development Council provision of Community law. The has no power to, and does not, make exempted producers cannot realistically binding rules as to common quality be regarded as commercial growers. The standards, that it has no power in exemption in question certainly does not relation to producer organizations and constitute a breach of the principle of does not affect their formation or non-discrimination contained in Article activities in any way and that likewise no 40 (3) which, as the Court emphasized in activity of the Council infringes upon the Holdijk case, applies to the objectives the intervention and price mechanism pursued by the relevant common organ- established under Regulation No ization of the markets. A right to confer 1035/72. certain advantages on certain small-scale producers was upheld in the judgment of 30 October 1980 (Case 76/80 Schneider- Import, [1980] ECR 3469). With regard to Articles 92 and 93 of the Treaty, which were given effect by Article 31 of the regulation, the United The United Kingdom considers that the Kingdom Government refers to the Pigs mere existence of a common organiz- and Bacon Commission case, cited above, ation of the market does not ipso facto which, in its view, does not entail the preclude all national measures affecting result that all State aids are rendered the agricultural products concerned. In unlawful but establishes that, in addition this connection it refers to the judgment to being subject to Articles 92 to 94, of the Court of 2 February 1977 in Case the aid must not of its nature be 50/76 Amsterdam Bulb [1977] ECR 137 incompatible with the common organiz- and to the judgment in the Holdijk case ation of the market. For the reasons set cited above. out above the levy at issue is not incompatible with the common organiz- ation. Nevertheless, on the basis of the With reference to the Pigs and Bacon Steinike case cited above the levy Commission case and the Buys case, cited remains subject to review by the

Commission pursuant to Article 93 of the Development Council appears to be to Treaty. improve the efficiency and productivity of the sector as a whole and observes that it is therefore necessary to determine In the opinion of the United Kingdom the extent to which the national rules on examination of the characteristics of the agricultural products, for which a regulation in question do not suggest common organization of the market that the levy at issue is incompatible with exists, are permitted under Community the specific mechanisms thereof. Fur- law.

On the other hand the existence of a common organi- Thus, whilst the United Kingdom fully zation of the market does not exclude all accepts that the basic principle under- national measures. Thus the Member lying Regulation No 1035/72 is the States are obliged to adopt the necessary freedom of trade and of commercial provisions for implementing the common transactions subject to the provisions of rules, for example provisions imposing that regulation, it does not consider that penalties, rules of procedure, and rules the levy at issue endangers that principle. on supervision.

policy. It considers that the object of the the other central provisions of Regu-

lation No 1035/72 and notes that the the expense of financing the Develop- regulation contains provisions concern- ment Council to be shared equally by the ing aid for the formation of producers' growers concerned, all of whom benefit organizations with a view to consolidat- from it. ing the position of producers through concentration of supply and regulation It is assumed that the charge is not so of prices at the producer stage. heavy as to affect the operation of the organization of the market, including its The Community has taken the view that, system of prices. in particular in the market in fruit and vegetables, it is important to consolidate The settled case-law of the Court of the position of producers. Justice shows that it is the task of the

of the market. That also applies to the would see no objection to it as regards organization of the market in fruit and Community law in general or the vegetables. common organization of the market. However, the Development Council The Danish Government considers that carries out sales promotion for English the United Kingdom measures con- and Welsh apples and pears only which cerning the Development Council are could lead to their share of the market compatible with the objective of the increasing at the expense of competing common organization of the markets products from other Member States. and with Regulation No 1035/72. On Indeed, the Council's Report and the basis of the information available to Statement of Accounts for the Year 1981 the Danish Government there is no shows clearly that the aim of the reason to consider that the measures in promotion campaign "is to recover for question limit production or the right of growers their rightful share of the the producers freely to market their United Kingdom market".

If, as the Danish Government considers that, the Commission thinks, the approval of in the absence of any provisions on the Court relates to publicity campaigns the matter, it is not contrary to the the second case may be regarded as provisions governing the common or- reversing Geddo pn that point in so far as ganization of the market. It is proper for the Court stated that national provisions

After considering the relevant case-law the Commission regrets that it is still According to the Commission the unable to express a view as to whether Development Council's 1981 Annual an advertising compaign of the kind in Report shows that the Council exerts its question is compatible with Regulation influence on growers to prompt them to No 1035/72. If the campaign is not comply with quality standards which are compatible, the levy must also be not necessarily those of the Community. incompatible in so far as it is used to Such compliance is ensured by means of finance the campaign. "recommendations" which appear to be more peremptory than is usually implied by that word, since the report states "it With regard to the Development was rarely that a grower again marketed Council's influence on the quality of such fruit after the lapse had been apples and pears produced in the United brought to his notice" and that Kingdom, the Commission observes that wholesalers who repeatedly supply "sub- it is incompatible with the common standard" fruit are reported to the organization of the market in fruit and National Federation of Fruit and Potato vegetables. Member States do not have Traders. sweeping powers to derogate from the quality standards fixed by the Community. Furthermore, the Development Council is not one of the authorities notified by the United Kingdom to the Commission The Member States indeed enjoy a as empowered to apply quality standards certain discretion, as is shown by the pursuant to Article 8 of Regulation No requirement that "the fruit must be 1035/72. The Commission considers that sufficiently developed and sufficiently it is unable to take a final decision on ripe to withstand the transport and this point and observes that if the handling ensuring its arrival in a satis- Development Council induces or seeks to

As regards exemption from the levy and The Development Council emphasizes the requirement of registration the that even if the annual charge were Commission considers that they are not capable of amounting to State aid (which incompatible with Article 40 (3) of the it does not accept), it is sufficient to Treaty. It is clearly sound to exempt recall that the Commission has been at from such requirements producers who all times kept informed by the United are not engaged in commercial pro- Kingdom Government of the existence duction and those who produce small and functions of the Development quantities. The Commission considers Council and how it discharges those that the requirement to register is merely functions and has made no objection. incidental to the collection of the levy The Development Council observes that even though failure to comply with the by virtue of the judgment in Steinike und requirement has been made a separate Weinlig, cited above, the compatibility of offence under English law. In this case aid granted by a State with the Treaty is the requirement cannot be considered to a matter solely for the Commission (or, be a restriction on growers' access to the on the basis of a direct action, for the market. That is why the Commission Court of Justice) and not for the considers that the judgment of the Court national courts. in the Vriend case, cited above, is not relevant since in that case, according to In its observations the United Kingdom the Commission, the requirement of points out that Article 31 of Regulation registration constituted a restriction on No 1035/72 gives effect to Articles 92 to marketing. The lawfulness of a require- 94 of the Treaty and it maintains that the ment to register thus depends on the effect of Article 31 must be considered in lawfulness of the levy. the light of the judgment in the Pigs and Bacon Commission case, cited above. 3. Articles 92 to 94 of the Treaty In that case it was held that the payment With regard to the applicability of of an export bonus was of its nature Articles 92 to 94 on aid granted by States incompatible with the principles of the the Development Council observes that common organization of the market. the question should be examined, even Nevertheless it would be quite contrary though it has not been raised by the to principle to suggest that all State aid is defendants in the main proceedings, in precluded by the mere existence of a the light of the Steinike und Weinlig common organization of the market. case, cited above. According to the United Kingdom the effect of the Pigs and Bacon Commission Although Articles 92 to 94 are applicable case is not to exclude all State aid but to to the common organization of the establish that such aid, in addition to market (see Article 31 of Regulation No being subject to Articles 92 to 94, must 1035/72) according to the judgment in not of its nature be incompatible with the the Pigs and Bacon Commission case, common organization of the market.

As is apparent from the other obser- trading conditions to an extent contrary vations of the United Kingdom the levy to the common interest. in question is not incompatible with Regulation No 1035/72. Nevertheless, on the basis of Steinike und Weinlig it With regard to notification the United is subject to the appraisal of the Kingdom does not accept that it has Commission, pursuant to Article 93 of been in breach of Article 93 (3) of the the Treaty. According to the United Treaty: changes in the rate of the levy Kingdom the Commission is fully have been duly notified to the informed as to the functions and Commission which has been sufficiently financing of the Council. informed at all material times to enable it to initiate the procedure envisaged under Article 93 (2) if it considered that course

It considers frequently taken the view that the aid is that such a distinction is misconceived not incompatible with either the Treaty and must be rejected because of the or regulations adopted thereunder. The absurdities which it entails. Thus for United Kingdom considers that serious example it would be lawful for the problems will arise if "the blunt French Government to subsidize instrument" of Article 30 is applied promotion of French apples and pears in instead of the complex process of the United Kingdom but unlawful for evaluation in accordance with Articles 92 the Development Council to promote

nature. Under Articles 92 and 94 overlooks the fact that its promotion of Member States may notify an aid to the domestic production tends to increase Commission which, in its turn, may exports, yet it fails to address the decide whether the aid is compatible problem of regional aid and draws an with the Treaty, whilst Article 30 entails unrealistic distinction between the "home the total prohibition of certain national trade" and the "export trade". measures. The application of Article 30 would make it impossible for the Member States to establish, in the The Commission emphasizes in its manner provided for in Article 92 (3), written observations that it is necessary that the aid in question facilitates the to examine Articles 92 to 94 of the development of certain activities where Treaty even though the national court such aid does not adversely affect has not requested the Court of Justice to

give a ruling on the compatibility with On the basis of the foregoing obser- those articles of measures such as those vations the Commission considers that in at issue in this case. According to the this case the obligation contained in Commission, services of the kind Article 93 (3) applies to the alteration of provided by the Development Council the maximum rate of the parafiscal constitute an aid within the meaning of charge rather than to its actual rate Article 92 of the Treaty even if they are because, unlike the determination of the financed by a charge imposed on actual charge by the Development producers. In that connection the Council, the fixing of the maximum Commission refers to the decision of the amount in fact constitutes a legislative Court of Justice in Steinike und Weinlig, measure. In any case the aid in question cited above. has been unlawful for some time since the actual amount of the levy has also been increased on a number of occasions since 1 January 1973 without the provisions of Article 93 (3) being observed. It observes that those services were already provided before the accession of the United Kingdom to the Community The Commission concludes by referring and thus in 1973 they constituted to the judgment of the Court of 25 June "existing aid" for the purposes of Article 1970 in Case 47/69 France v Commission 93. It notes that the maximum amount of [1970] ECR 487 from which it follows the levy has been increased three times that as a result of the illegal nature of since that date, on 1 April 1975, 7 May the aid in question the parafiscal charge 1975 and 18 December 1975, and it imposed on English growers of apples considers that the increase of a parafiscal and pears has also been unlawful from charge used to fund an aid constitutes the same date. the alteration of an aid within the meaning of Article 93 (3). In that regard the Commission recalls the view expressed by the Advocate General in his 4. The answers to be given to the opinion in Pigs and Bacon Commission v questions submitted McCarren ([1979] ECR 2195 at pp. 2204 and 2205). The Commission was not notified in advance, as is required by In the light of the observations Article 93 (3), of any of the three above- summarized above the Development mentioned increases in the levy. It is well Council considers that the reply to the established that an aid implemented first question should be in the negative contrary to the last sentence of Article 93 and that it is therefore unnecessary for (3) is not only unlawful but also subject the Court to reply to the remaining to challenge by individuals before the questions. national courts. In this connection the Commission refers to the judgments of the Court of 15 July 1964 (Case 6/64 The United Kingdom concludes that the Costa [1964] ECR 585) of 19 June 1973 reply to the first question should be as (Case 77/72 Capolongo [1973] ECR 611) follows : and of 11 December 1973 (Case 120/73 Lorenz [1973] ECR 1471). It follows that the aid in question in this case has been "A national levy on growers of apples unlawful since 1 April 1975 when it was and pears which is substantially devoted altered in contravention of Article 93 (3). to advertising, promotion, publicity and

related functions does not contravene 2. A requirement to register, such as that Articles 30 or 34 of the Treaty or the in issue, is merely a means of provisions of Regulation No 1035/72". enforcing the collection of the levy and is therefore not in itself contrary to Regulation (EEC) No 1035/72. The Danish Government proposes that the Court of Justice should take account of the following factors: 3. The establishment of a body empowered to require apple and pear growers to furnish statistics and other It is not incompatible with either the information is compatible with Regu- provisions of the EEC Treaty or with the lation (EEC) No 1035/72. common organization of the market in fruit and vegetables to compel growers 4. A levy of the kind in question is of apples and pears to register with an incompatible with Regulation (EEC) organization whose object inter alia is to No 1035/72 in so far as it serves to increase efficiency and productivity finance activities which are themselves within the sector and for that purpose to contrary to that regulation. provide services for growers of apples and pears. Second question It is also compatible with Community law to require growers to pay a charge As regards the question whether the legal to meet the organization's costs, position is affected by the express provided that the operation of the approval of those of the producers who, mechanisms introduced by the common when canvassed regarding continuation organization of the market in fruit and of the Development Council, declared vegetables is not hindered and the free themselves in favour thereof, the movement of goods is not hampered. Development Council considers that the express support of a large proportion of growers for the establishment and The national court is competent to continuation of the Council and the decide whether the organization in predominant part played by growers in question in actual fact produces such its management are of considerable effects, and if so to what extent. importance in assessing its compatibility with the common organization of the market in this case. The Development The Commission suggests that the Council refers by analogy to the questions should be answered as follows: provisions of Regulation No 1035/72 which encourage the establishment of producers' organizations "on the pro- 1. An increase in a charge by which an ducers' own initiative". aid is financed constitutes an alteration of that aid for the purposes of Article 93 (3) and must therefore The United Kingdom has not formulated be notified before it is put into effect. any answer to the second question, in Where such an alteration has been view of its answer to the first question. effected without prior notice being given to the Commission individuals The Danish Government has likewise not may challenge it before the national expressed any views on the second courts. question.

The Commission states that if the alteration of an aid prior to putting it measures in question are incompatible into effect may be relied upon by with Community law they are not individuals before the national courts. rendered lawful by the fact that they The same applies to the incompatibility were supported by a majority of growers of a national measure with a common who voted in a referendum. Neither such organization of the market. It could be consent nor a fortiori the consultation relied upon by a grower in an action for of other interested parties can have recovery of the levy. The Commission the effect of making such measures goes on to observe that the same answers compatible with Community law. must be given to the other parts of the question except that a decision on the basis of Article 93 (3) would make the charge wholly unlawful whereas a ruling Third question confined to the compatibility of such measures with a common organization of The Development Council accepts that the market may render the levy unlawful Articles 30 and 34 of the Treaty and only in part. Regulation No 1035/72 are of direct effect so as to confer upon individuals rights which are enforceable in the courts The Development Council takes the view, of a Member State and refers by way of on the basis of the judgments of the example to the Pigs Marketing Board Court of 8 April 1976 in Case 43/75 case, cited above. However, if and in so Defrenne [1976] ECR 455 and of 27 far as the defendants seek to rely upon March 1980 in Case 61/79 Denkavit the principle of non-discrimination Italiana [1980] ECR 1205, and also of 27 contained in Article 40 (3) of the Treaty, March 1980 in Joined Cases 66, 127 and the Development Council submits, 128/79 Salumi, Vasanelli and Ultrocchi without prejudice to its primary [1980] ECR 1237, that if the Court were contention, that that article does not to declare that all or part of the levy have direct effect. In this connection it in question were incompatible with refers to the judgment in Geddo, cited Community law it should also rule that above, and to the opinion of the the effects of the judgment are restricted Advocate General on that point (in to the financial years after the date particular at pp. 886 to 889). thereof.

The United Kingdom considers that Fourth question paragraphs (ii) and (iii) of the third question are matters of national law and refers more generally to the judgment of The Development Council accepts that the Court of 10 July 1980 in Case pursuant to Article 60 of the Act of 811/79 Ariete [1980] ECR 2545. Accession the relevant date is 1 February 1973. That constitutes an additional argument for adopting the same The Commission considers that the direct approach as that in the De/renne case, applicability of the provisions in question cited above, because, if the Development means that a charge which is Council were required to refund to the incompatible with those provisions may growers all the charges collected since· 1 not properly be imposed on a grower February 1973, it would be impossible (see the Pigs and Bacon Commission for it to make such payments. If the case). A producer is entitled to claim the defendants recovered such sums in the refund of any sums paid in contravention present action in full they would obtain of those provisions. an unfair commercial advantage over all other growers since the Council would Furthermore, if a charge is found to be have no funds available with which to partly lawful and partly unlawful the repay the latter. national court must determine what proportion of the charge must be recovered or reimbursed. The Com- In view of their answers to the first mission refers to the Pigs and Bacon question, the United Kingdom and the Commission case, cited above, and Danish Government do not suggest any proposes that the Court follow that answer to the fourth question. decision which, in its view, establishes that the matter of the calculation of the refund or restitution must be settled by The Commission, following its reply to the national court in accordance with the the first question, points out that in the national system of law. Community law light of Article 93 (3) the illegality of the may thus take account of the benefit measures at issue dates from 1 April which the grower has or might have 1975. If the Court declares that the derived from the money raised by such measures in question are incompatible annual charges. with the common organization of the market that incompatibility must, pur- suant to Article 60 (1) of the Act of With regard to the question whether a Accession, be regarded as dating from judgment of the Court of Justice also 1 February 1973.

Decision

1 By o r d e r of 19 July 1982, which was received at the C o u r t o n 23 August 1982, T u n b r i d g e Wells C o u n t y C o u r t referred to the C o u r t of Justice for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y several questions o n the interpretation of, in particular Articles 30, 34 and 38 to 47 of the T r e a t y , Articles 42 and 60 (1) of the 1972 Act of Accession a n d Regulation N o 1 0 3 5 / 7 2 of the Council of 18 M a y 1972 o n the c o m m o n o r g a n i z a t i o n of the m a r k e t in fruit a n d vegetables (Official J o u r n a l , English Special Edition 1972 (II), p. 437), in o r d e r to enable it to assess: (i) the compatibility with those provisions of the British rules concerning the Apple and Pear D e v e l o p m e n t C o u n c i l ; and (ii) the consequences of any such incompatibility with regard to the charge used to finance the said Council.

2 T h e Apple and P e a r D e v e l o p m e n t Council (hereinafter referred to as " t h e D e v e l o p m e n t C o u n c i l " ) was established by a statutory instrument m a d e

APPLE AND PEAR DEVELOPMENT COUNCIL v LEWIS

under the Industrial Organization and Development Act 1947, which enables the Minister responsible to make a "development council order" in respect of an industry where it appears to him to be expedient "to increase efficiency or productivity in the industry, to improve or develop the service that it renders or could render to the community, or to enable it to render such service more economically". Before making such an order, the Minister is required to consult persons representative of a substantial number of those carrying on business or employed in the industry in question. The Minister has no power to make an order unless he is satisfied "that the establishment of a development council for the industry is desired by a substantial number of persons engaged in the industry". The extent of the support for the existence of a development council must be reviewed periodically.

3. Promoting the production and marketing of standard products. (a) Advising persons who participate in any scheme for promoting the production and marketing of standard products as to the prices at which they should endeavour to sell such products, and undertaking inquiry for the purpose of enabling the Council so to advise.

4. Promoting the better definition of trade descriptions and consistency in the use thereof.

5. Undertaking the certification of products, the registration of certification trademarks, and the functions of proprietors of such marks.

6. Promoting or undertaking research for improving arrangements for marketing and distributing products.

7. Promoting or undertaking research into matters relating to the consumption or use of the products of the industry.

8. Promoting arrangements for cooperative organizations for supplying materials and equipment, for coordinating production, and for marketing and distributing products.

7 The growers concerned are obliged to register and to furnish to the Development Council returns and informtion on the activities carried on by them in the industiy.

8 The Development Council commenced actions in the Tunbridge Wells County Court to recover from three growers the charge due for the financial year 1980-81. The defendants counterclaimed for restitution of the annual charge paid by them since 1 January 1973. They submitted that the continuation of the Development Council was contrary to Community law with effect from the date of the United Kingdom's accession and that the said charge, being a charge having effect equivalent to a customs duty, should have been abolished at the latest by 1 February 1973, in accordance with Article 60 of the Act of Accession.

9 In those circumstances, the County Court decided to submit the following questions to the Court of Justice:

Question 1

Do Articles 30 and 34 and/or 38 to 47 of the EEC Treaty and/or Articles 42 and 60 (1) of the Treaty of Accession and/or Regulation (EEC) No 1035/72 of the Council as amended preclude a Member State from adopting and/or maintaining by law measures

(i) establishing and/or continuing in part of that Member State a body having the constitution and/or the functions set out in United Kingdom S.I. 1966 N O 1579 and/or 1980 No 623,

(iv) permitting the Development Council to levy upon growers liable to register a compulsory annual charge based upon the area of land occupied by them for the purpose of business in the industry to enable the Development Council to meet their administrative and other expenses,

and/or

(v) exempting from the measures growers occupying less than two hectares of land or land planted with less than 50 apple or pear tress?

Question 2

If the answer to the whole or any part of Question 1 would otherwise be in the affirmative would the fact (if established) that the Development Council was established and/or continued with the express support of those growers recorded in the survey referred to above [in the order for reference] as sup- porting the continuance of the Development Council and representing the proportion of land therein referred to and after consultation with organ- . izations appearing to be representative of numbers of persons· carrying on business or employed in the industry affect that answer and if so in what way?

APPLE AND PEAR DEVELOPMENT COUNCIL v LEWIS

(iii) in deciding whether to order restitution of any of the annual charges paid by a grower is the court of the Member State entitled to take into account that the money raised by the annual charges has been used by the Development Council for purposes from which the grower has and/or might have derived a benefit?

Question 4

If any such measure as is described in Question 1 or any part of such measure is incompatible with Articles 30 or 34 of the EEC Treaty did such conflict arise on the date referred to in Article 42 of the Treaty of Accession or the date referred to in Article 60 (1) thereof?

JUDGMENT OF 13. 12. 1983 — CASE 222/82

T h e first q u e s t i o n

10 By this question, the Tunbridge Wells County Court wishes, in the first place, to know whether the Community provisions indicated in the question preclude the establishment or continuation of a body having a constitution such as that of the Development Council, if that body is financed by a charge levied on growers who have at their disposal potential production capacity in excess of certain limits and if those growers are obliged to register with the body and to furnish returns and information on their activities in the industry. In the second place, the Court asks whether such a body may be contrary to the said provisions by reason of its functions.

15 It appears however from the documents before the Court that the Development Council is concerned essentially with publicity and promotion on the British market and improvement of the quality of the indigenous fruit marketed in the United Kingdom. It is therefore necessary to consider to what extent such activities might be incompatible with the Community provisions referred to by the national court. As regards publicity and pro- motional measures, particular attention should be given to the interpretation of Article 30 of the Treaty, which prohibits, inter alia, all measures having an effect equivalent to quantitative restrictions on imports. On the other hand, the Development Council's activities regarding quality must be considered in the light of the quality standards provided for by the rules on the common organization of the market in fruit and vegetables.

The publicity activities in particular

16 With respect to publicity and promotion, it is apparent from the documents before the Court that, in addition to advertising apples and pears in general, the Development Council organizes compaigns relating specifically to English and Welsh apples and pears and, in particular, certain varieties which are typical of English and Welsh production.

17 As the Court held in its judgment of 24 November 1982 in Case 249/81 (Commission v Ireland [1982] ECR 4005), a publicity campaign to promote the sale and purchase of domestic products may, in certain circumstances, fall within the prohibition contained in Article 30 of the Treaty, if the campaign is supported by the public authorities. In fact, a body such as the Development Council, which is set up by the government of a Member State and is financed by a charge imposed on growers, cannot under Community law enjoy the same freedom as regards the methods of advertising used as that enjoyed by producers themselves or producers' associations of a voluntary character.

Activities relating to quality

22 As regards the quality of the domestic fruit marketed in the United Kingdom, it appears that the Development Council makes recommendations concerning the size of the fruit marketed at the beginning of the season and that those recommendations go beyond what is required by the Community quality standards. Moreover, the Development Council's annual reports

APPLE AND PEAR DEVELOPMENT COUNCIL v LEWIS

show that it carries out quality control inspections on the wholesale markets and reports any cases of failure to comply with those recommendations to the growers in question and to the organizations of which the wholesalers concerned are members.

23 In that regard, it should be emphasized that the rules on the common organization of the market in fruit and vegetables provide for an exhaustive system of quality standards applicable to the products in question. Unless those rules provide otherwise, Member States and, a fortiori, bodies such as the Development Council are therefore prevented from imposing unilateral provisions concerning the quality of the fruit marketed by growers.

24 The Community rules certainly do not prevent competition regarding the quality of the produce between growers in a Member State or between those growers and importers. Nor do they prevent growers from concerning themselves with the reputation of national produce or a body such as the Development Council from giving advice to growers in that connection in the form of simple recommendations concerning the quality and presentation of the fruit marketed. On the other hand, any attempt by such a body to impose compliance with those recommendations by applying any sort of penalties or by using the authority vested in it by its constitution to bring pressure to bear on growers or on traders would be unlawful in view of the exhaustive nature of the Community rules.

The charge imposed on growers

29 In part (iv) of the first question, the national court asks whether a charge such as the one in issue is incompatible, as such, with the Community provisions referred to in that question.

30 As regards Articles 30 and 34 of the Treaty, it is sufficient in this respect to point out, as the Court did in inter alia its judgment of 22 March 1977 in Case 74/76 (Iannelli & Volpi v Meroni [1977] ECR 557), that the charges, being measures of a fiscal nature or of equivalent effect, fall within the scope, not of those articles, but of Articles 9 to 16 and 95 of the Treaty. Since the charge in question does not apply to imported produce and only affects produce intended for export in the same way as produce sold on the home market, it does not raise any problem in relation to the last-mentioned articles either.

31 As the Court has held previously, in particular in its judgment of 26 October 1983 in Case 297/82 (De Samvirkende Danske Landboforeninger [1983] ECR 3299), a charge imposed on agricultural producers is incompatible with the Community provisions relating to agricultural policy, in so far as it has the effect, as a result of its influence on price formation or through the change in the structure of agricultural holdings which may result therefrom, of impeding functioning of the machinery provided for under the common organization of the markets. Although it is for the national court to consider whether, and if so, to what extent, the charge which it is called upon to consider has actually produced such effects, it should nevertheless be noted

(ii) requiring only fruit growers with a plantation which exceeds a specified size to register with the said council, to furnish returns and information on their activities in the industry and to finance the administrative and other expenses of the council by the payment of an annual charge,

in so far as the activities of the council consist in compiling statistics, promoting or undertaking research, making the results thus obtained available to growers and giving growers technical advice about fruit- growing.

(b) The said provisions do not prevent such a body from drawing attention, in its publicity, to the specific qualities of fruit produced within the Member State in question or from organizing campaigns to promote the sale of certain varieties, mentioning their particular properties, even if those varieties are typical of national production; on the other hand, it would be contrary to Article 30 of the Treaty for such a body to engage

JUDGMENT OF 13. 12. 1983 — CASE 222/82

in publicity intended to discourage the purchase of products from other Member States or to disparage those products in the eyes of consumers, or to advise consumers to purchase domestic products solely by reason of their national origin.

(c) The said provisions do not prevent such a body from addressing to growers, within the framework of its general advisory role, recommendations concerning the quality and presentation of the fruit marketed; on the other hand, in view of the exhaustive nature of the system of common quality standards it would be unlawful for such a body to attempt to impose compliance with standards different from those common standards, by applying any sort of sanctions or by using the authority vested in it by its constitution to bring pressure to bear on growers or traders.

36 By this question the national court wishes to be informed of the criteria for the interpretation of Community law which it needs in order to consider the consequences of any incompatibility of the rules in question with the Community provisions referred to in its first question.

37 In that respect it must, in the first place, be emphasized that, as the Court has consistently held, Articles 30 and 34 of the Treaty confer upon individuals rights which they may enforce before the courts of a Member State. As regards the regulations on the common organization of the markets, the same direct effect derives from the fact that, by virtue of Article 189 of the Treaty, regulations are directly applicable in every Member State.

38 In the second place, it must be pointed out, as the Court did in, inter alia, its judgment of 27 March 1980 in Case 61/79 (Amministrazione delle Finanze dello Stato v Denkavit Italiana, [1980] ECR 1205), that the interpretation of the rules of Community law given by the Court under Article 177 of the Treaty may and must be applied by the national court even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of the said rules to be brought before the courts having jurisdiction are satisfied.

39 It follows that the provisions of Community law mentioned above may be raised as a defence to a claim for payment of a charge which is incompatible with those provisions and that they may also be raised as grounds for claiming restitution of such a charge, where it has been improperly levied.

(b) Those provisions may be raised as a defence to a claim for payment of a charge which is incompatible therewith and may be raised as a ground for claiming restitution of such a charge, even if payment took place before that incompatibility was declared in an interpretation given by the Court under Article 177 of the Treaty.

(c) Where a charge serves to finance a body some of whose activities are held to be contrary to Community law, it is for the national court to decide whether, in the light of the importance of the activities in question, that fact renders the charge unlawful and must entail total or partial exemption.

(d) In the same circumstances, it is also for the national court to determine, in accordance with its national law, whether and to what extent the charge must be refunded and whether and to what extent such entitlement to a refund is offset by the advantages accruing directly to the person concerned as a result of the activities of the said body.

The fourth question

43 In its last question, the national court asks, in essence, whether, as regards products which were subject to the common organization of the markets when the United Kingdom acceded to the Communities, the prohibition of measures having an effect equivalent to quantitative restrictions laid down in Articles 30 and 34 of the Treaty took effect on 1 February 1973, as provided

APPLE AND PEAR DEVELOPMENT COUNCIL v LEWIS

T H E COURT,

in reply to the questions submitted to it by the Tunbridge Wells County Court, by order of 19 July 1982, hereby rules:

1. (a) The provisions of the Treaty relating to the free movement of goods and to agriculture and the rules on the common organ-

JUDGMENT OF 13. 12. 1983 — CASE 222/82

ization of the market in fruit and vegetables do not prevent a Member State from adopting or maintaining measures

(i) establishing a development council for fruit production, composed of members appointed by the Minister responsible, in particular from among the growers involved, and

APPLE AND PEAR DEVELOPMENT v LEWIS

(d) The said provisions render unlawful the requirement for growers to become members of such a body or to finance its activities by the payment of a charge, if and in so far as those activities are contraiy to the said provisions.

2. The fact that the council in question was created and maintained with the express approval of growers representing more than half of the land planted and after consultation with organizations apparently representing a large number of persons carrying on business or employed in the industry does not affect the reply given to the first question.

3. (a) Articles 30 and 34 of the Treaty and the regulations on the common organization of the markets confer upon individuals rights which they may enforce before the courts of a Member State.

(b) Those provisions may be raised as a defence to a claim for payment of a charge which is incompatible therewith and may be raised as a ground for claiming restitution of such a charge, even if payment took place before that incompatibility was declared in an interpretation given by the Court under Article 177 of the Treaty.

(c) Where a charge which serves to finance a body some of whose activities are held to be contrary to Community law, it is for the national court to decide whether, in the light of the importance of the activities in question, that fact renders the charge unlawful and must entail total or partial exemption.

For the Registrar H. A. Rühi J. Mertens de Wilmars Principal Administrator President

OPINION OF MRS ADVOCATE GENERAL ROZÈS D E L I V E R E D O N 20 S E P T E M B E R 1983 x

Mr President, dispute between that body and three Members of the Court, growers of apples and pears, K. & J. Lewis Ltd, Leighton Fruit Ltd and A number of questions have been R. M. O. Capper. Section 1 (1) of the referred to this Court for a preliminary Industrial Organization and Develop- ruling under the first and second ment Act 1947 authorizes the relevant paragraphs of Article 177 of the EEC minister to make a "Development Treaty by His Honour Judge Brian Council Order" in respect of an industry Grant sitting at Tunbridge Wells County where it appears to him to be expedient Court concerning the activities of a body "to increase the efficiency or governed by English law known as the productivity" of the economic sector in "Apple and Pear Development Council" question. By means of inquiries carried [hereinafter referred to as "the Develop- out before the creation of such a body ment Council"]. and subsequently at least every five years, the Minister is required to satisfy I — This request for a preliminary himself that the existence of such a ruling is submitted in the context of a Development Council is desired by a

1 — Translated from the French.