C-58/86

OPINION OF MR DARMON —CASE 58/86

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 5 February 1987 *

Mr President, 'a threshold price to which the price of Members of the Court, imported products must be equated by means of a variable import levy'. 1

1 . Do the price of maize agreed upon in an 2. That is because exporting non-member country or the special situation of the island of Réunion justify a derogation from the Community 'the creation of a single Community market system of agricultural levies instituted by for cereals involves, apart from a single Regulation No 2727/75 of the Council on price system, the introduction of a single the common organization of the market in trading system at the external frontiers of 2 cereals? This in essence is the question to be the Community'. decided in this case. The existence of a single price system for trade both within the Community and In order to resolve that question the outside it, being a sine qua non for a single national court asks first whether the amount market, is the only means by which the of the levies charged on imports from objectives of Article 39 of the EEC Treaty non-member countries must be varied in the can be attained. In particular, a single light of the circumstances surrounding each trading system serves transaction, in such a way that they will be collected only if there is in each case a 'to stabilize the Community market, in positive difference between the price particular by preventing price fluctuations prevailing within the Community and the on the world market from affecting prices external price. ruling within the Community' 2

Thus conceived, the system of levies must, basis of the quotations and prices of as the Commission stated, be of an 'abstract' that market'. 5 or rather a general impersonal nature because it must apply independently of the price conditions agreed in any particular That last price therefore amounts to an transaction. average representing the real trend of the 6 market. The amount of the levy, which is fixed each day by the Commission, is This is confirmed in the Court's judgment altered only where it would be increased or in Neumann: reduced by more than 0.60 units of account 7 per tonne. 'since the levy ... acts as a regulatory device for markets not in a national context but in a common organization, is defined with The levies are therefore applicable to all reference to a price level fixed in the light of imports irrespective of the particular price the objectives of the common market ..., it conditions prevailing in the exporting therefore appears as a charge regulating non-member country. Since the levies external trade connected with a common price collected are necessarily standard in nature, policy ... '. 3 it may be that the price paid in respect of a particular transaction will exceed the cif price which the Commission has adopted as As the Commission correctly pointed out, representative. That will merely be an the rules governing the calculation of the isolated case without any significance from levy are a direct reflection of those charac­ the point of view of the general trend of teristics. The amount of the levy is defined prices on the world market. Otherwise it by the difference between will be necessary for the Commission to amend the levy previously fixed.

3. Secondly, the tribunal d'instance, That would not of course preclude the Saint-Denis asks the Court whether, in view authors of Community legislation from of the objectively different situation of the creating exceptions based on the special island of Réunion as compared with the rest geographic, economic and social situation of of the Community, the application of the an overseas department. 8Indeed Article 227 system of levies to its imports of maize is (2) of the Treaty specifically provides that: not contrary to the principle of non-discrimination laid down in Article 40 (3) of the EEC Treaty. 'the institutions of the Community will, within the framework of the procedures The plaintiff in the main proceedings provided for in this Treaty ..., take care contends that the island's geographical that the economic and social development isolation from the European mainland, of these areas is made possible'. which entails high transport costs, and the fact that its maize requirements substantially Furthermore, by Regulation No 594/78 of 9 exceed local production capacity constitute 20 March 1978 the Council exempted from a case of force majeure for importers in all levies rice imported into the island of Réunion, who are compelled to import from Réunion because it appeared that South Africa the quantities of maize necessary to satisfy the requirements of local 'the supply situation should be improved by stock-farmers. the introduction of special arrangements for 10 rice for local consumption'. In that regard it should be pointed out that the application of the system of import In the case of rice the Council found that levies to the French overseas departments is the region was 'completely dependent on governed by Article 227 (2) of the EEC imports' because rice was not cultivated Treaty, which provides that: there. It also had regard to the fact that rice 'constitutes the basic foodstuff of the least 'the general and particular provisions of this favoured categories of the population of Treaty relating to: Réunion' and that their rice consumption considerably exceeded that of the 11 Community. In the Council's view those factors regarding the supply of rice for agriculture, save for Article 40 (4); human consumption objectively charac­ terized the situation of Réunion within the Community and therefore justified a different treatment in regard to the system shall apply as soon as this Treaty enters into of levies. force'. No legislation of that nature has thus far Consequently, with the exception of the been adopted for imports of maize for use case covered by Article 40 (4), which is not as animal feed. It is for the Community at issue here, all the rules governing the legislature, in particular in the light of any common organization of the cereals sector, proposals made by the study group speci- and more particularly those instituting the import levies, were applicable in their 8 — See judgment in Case 148/77 Hansen v Hauptzollamt entirety throughout the territory of the Flensburg [1978] ECR 1787, at paragraphs 9 and 10. French Republic including the overseas 9 — Official Journal 1978, L 82, p. 10. department of Réunion as from the entry 10 — Third recital in the preamble to Regulation No 594/78.

fically responsible for monitoring the of the exporting countries is not sufficient situation of the overseas departments, to or reliable production, it would seem that make judgments of an economic and social Zimbabwe offered importers in Réunion the nature which might justify the creation of a possibility of obtaining supplies satisfying general derogation. As matters stand, there both those criteria in each of the years in being no specific and compelling indications question. to that effect, there are no grounds for concluding that the situation of Réunion with regard to maize imports is so special as to distinguish it objectively from all other Thus importers had the choice of regions of the Community. purchasing within the Community, the costs of transport constituting in a sense the counterpart for the absence of any import levy, purchasing free of the levy from the In any event, it is clear from a comparison exporting ACP States, which are closer between figures for imports and for intra- geographically, or, finally, purchasing from community trade between 1980 and 1983 any other non-member State, in particular that the Community is itself, as regards South Africa, but subject to the levy.

4. It may be observed, moreover, as the may be pointed out that Regulation No Commission has pointed out, that Article 21 594/78 concerning rice refers to exceptional of Council Regulation No 435/80 of 18 circumstances, such as an absolute February 1980 on the arrangements dependence for human consumption and applicable to agricultural products and imperative economic and social needs, in certain goods resulting from the processing order to define that region's uniqueness of agricultural products originating in the within the Community. African, Caribbean and Pacific States or in

5. Finally, the tribunal d'instance asks the 12 — Official Journal 1980, L 55, p. 4. Court to rule on the applicability of the