C-255/86
ECLI:EU:C:1987:525
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COMMISSION v BELGIUM
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 3 December 1987 *
Mr President, 3. As a result of the publication of the Members of the Court, Royal Decree of 12 January 1987, which removed almost all the additional requirements created by the Royal Decree 1. A —The issue in these proceedings is of 26 November 1982, the Commission essentially whether a Member State may withdrew most of its allegations, main adopt national rules concerning the taining only the complaint concerning the marketing of fruit and vegetables of the obligation to indicate, in the case of kind at present contained in Article 7 (3) ob products grown in Belgium, the minimum the Belgian Royal Decree of 26 November net weight, and the number of units or 1982, 1 as amended by the Royal Decree of bundles contained in bulk packages of 12 January 1987, which extends to other products. products certain requirements laid down by the Community provisions with respect to only certain products. The Community 4. Now that the causes for the possible regulations are contained, in particular, in application of Article 30 of the Treaty have Council Regulation No 1035/72 of 18 May been removed, the only question to be 1972 on the common organization of the considered is the compatibility of the market in fruit and vegetables, 2 Council aforementioned provision of the Belgian Regulation No 23 of 4 April 1962, legislation with the provisions on the Commission Regulation No 58/62 of 15 common organization of the market in fruit June 1962, Council Regulation No and vegetables contained in Regulation No 183/64/EEC of 17 November 1964 and 1035/72, and in particular the quality Commission Regulations (EEC) Nos standards adopted in the other regulations 1641/71 of 27 July 1971 and 778/83 of 30 referred to earlier. March 1983. 3
5. More specifically, the issue is whether 2. On the same basis as in the adminis the existence of Community rules on the trative phase of the procedure before the common organization of the market in a matter came before the Court, which is number of agricultural products prevents the described in the Report for the Hearing, the Member States from adopting legislation Commission brought its 'action in the first concerning the same sector. place against various provisions of the Royal Decree of 26 November 1982, which imposed a number of requirements ad ditional to those then contained in the 6. B — In that connection, the Belgian Community legislation. Government contends that the common organization of the market in fruit and * Translated from che Portuguese. vegetables is incomplete, in so far as the 1 — Moniteur belge of 16 February 1983. obligation to give the information to which 2 — Official Journal, English Special Edition 1972 (II), p. 437. I have just referred on the packaging exists 3 — Respectively, Official Journal, English Special Editions only with respect to four products: onions, 1959-62, p. 97, 1959-62, p. 204, 1963-64, p. 229, and 1971 (II), p. 616, and Official Journal 1983, L 86, p. 14. artichokes, celery and headed cabbage.
OPINION OF MR DA CRUZ VILAÇA —CASE 255/86
7. By extending that obligation to other 10. However, in the Commission's view, products covered by the common organ that is not the case as regards the Belgian ization of the market, Belgium maintains State's action with respect to the quality that, in the exercise of the residual power standards included in the common organ held by the Court to be vested in such cases ization of the market in fruit and vegetables, 4 in the Member States, it is completing that which is governed exhaustively by the organization by adopting a measure which, Community rules. in its view, is not contrary to the Community rules and is designed to pursue 11. C — (a) The previous decisions of the the full attainment of the objectives of the Court provide sufficient guidance to decide common organization of the market. Speci this case. fically, Belgium claims that the measure in question is designed to ensure the fairness 5 of commercial transactions and the 12. (b) Initially, the Court took the view protection of consumers. that 'in the sectors covered by a common organization of the market — even more so when that organization is based on a common price system — Member States can 8. The Commission, on the other hand, no longer interfere through national takes the view that Belgium's contentions provisions taken unilaterally in the are based on a confusion between two machinery of price formation as established totally different situations: under the common organization'.
13. (c) Subsequently, the Court, recog (a) The first is an absence of the nizing that certain common organizations of Community rules necessary for the the markets were incomplete, conceded that proper functioning of the common additional national measures implementing organization of the market, with the or developing the Community legislation result that it may be said that rules have were possible, provided that certain yet to be adopted regarding part of the conditions were satisfied. sector in question; 14. Thus, in its judgment of 23 January 6 1975 in Van der Hukt, a case which (b) The second is the existence of a involved certain levies collected by the common organization of the market Netherlands authorities in respect of trade comprising detailed and complete rules in flower bulbs, the Court — despite governing the matters covered by it. considering it necessary to examine the various elements of the national intervention machinery in the light of the Community 9. Only in the first case may the Member rules — recognized that machinery of the States, by virtue of the decisions of the kind established by the Netherlands rules Court of Justice, issue rules designed to could in fact contribute to attainment of the make up for inaction on the part of the objectives of the common organization of Community institutions, and in such cases the market (specifically in order to promote those rules must be compatible with the the rational disposal of production and to principles of the common organization of ensure market stability). But, in paragraph the market. 25 of the same judgment, the Court was
4 — Judgment of 7 February 1984 in Case 237/83 Jongeneeel 5 — Judgment of 23 January 1975 in Case 31/74 Galli [1975] Knot, [1984] ECR 483, paragraph 13; judgment of 28 ECR 47, paragraph 29 of the decision and paragraph 1 of March 1984 in Joined Cases 47 and 48/83 Pluimveeslach- the operative part. terijen Midden-Nederland and Van Mient [1984) ECR 1721. 6 — Case 51/74 [1975] ECR 79, 95, paragraphs 28 and 29.
COMMISSION v BELGIUM
careful to emphasize that 'once the expressly prohibited such a measure; (b) it Community has, pursuant to Article 40 of was not possible to deduce from the the Treaty, legislated for the establishment Community rules as a whole that the of a common organization of the market in Commission wished to imply that the a given sector, Member States are under an products not covered should be exported at obligation to refrain from taking any prices decided freely by market forces; (c) measure which might undermine or create that, on the contrary, it might be inferred exceptions to it'. The same reservation is from the rules drawn up by the Commission expressed in the judgments in Van den for implementing the system of minimum Hazel, of 18 May 1977, 7 Pigs Marketing prices that the Member States could Board, of 29 November 1978, 8and Pigs and continue to impose minimum export prices Bacon Commission, of 26 June 1979, 9and, until such time as the Commission had later, in Jongeneel Kaas, judgment of 7 decided to impose such prices itself at 10 Community level. February 1983.
19. Later, in the judgment in Jongeneel 15. In the Amsterdam Bulb judgment, of 2 Kaas, the Court conceded that the existence 1 February 1977, 1the Court took the view of a common organization of the market in that a Netherlands provision concerning a cheese, provided for in Regulation No matter covered by a common organization 804/68, did not prevent the Member States of the market, providing for minimum from adopting unilaterally in certain prices for exports to non-member countries circumstances (see the latter part of of certain varieties of bulbs other than those paragraph 13 of the decision) rules for which the Commission had laid down concerning the quality of cheeses produced minimum prices in Regulation No 369/75, within its territory, with the purpose of was not incompatible with Community law promoting sales of cheese and cheese (paragraph 30). products.
20. However, it made that statement with 16. But it is important to note the circum respect to a common organization of the stances in which the Court upheld that market which at that time did not contain provision. any rule on the designation or quality of cheese and did not establish an intervention system for cheese (paragraph 9 of the 17. In the first place, the Court considered judgment). In those circumstances, the that the measure in question did not create Court considered that 'the fact that the exemptions from the Community system, legislation in question makes no mention of did not limit its scope and sought to achieve the designation and quality of cheese does the same aim (paragraph 30). not mean that the Community has consciously and of necessity decided to impose on the Member States in that sector an obligation to adhere to a system of 18. In addition, the Court took account of absolute freedom of production'. the fact that: (a) no Community provision
7 — Case 111/76 [1977] ECR 901, paragraph 13. 21. Similarly in its judgment of 13 March 8 — Case 83/78 [1978] ECR 2347. 12 1984 in Prantl the Court conceded that, 9 — Case 177/78 [1979] ECR 2161, paragraph 14. 10 — Case 237/83 [1984] ECR 483, paragraph 12. 11 — Case 50/76 [1977] ECR 137. 12 — Case 16/83 [1984] ECR 1299, at pp. 1324 to 1326.
OPINION OF MR DA CRUZ VILAÇA —CASE 255/86
by adopting provisions concerning the marketing of slaughtered poultry and protection to be granted in respect of a imposing penalties for the contravention particular shape of bottle for Alsatian wine, thereof. the Community legislature had not ex- hausted its powers concerning the desig- nation and presentation of wines conferred upon it by Article 54 (1) of Council Regu- 26. In that case, there was an almost total lation No 337/79 of 5 February 1979 on the failure to act on the part of the Council common organization of the market in which, in a sector governed by a common wine. organization of the markets since 1967, had still not (contrary to the requirements of Article 2 of the regulation) brought into 22. Accordingly, pursuant to that provision, force the rules needed to enable the organ- and until such time as Community ization to function normally; the provisions had been adopted (for which Commission itself, having encountered negotiations had been in progress for several resistance in the Council, withdrew the years) the Member States were entitled to proposals for regulations which it had maintain the existing national rules in force submitted (paragraph 21 of the decision). in relation to other types of wine bottles provided that they did not contravene Article 30 et seq. of the Treaty. 27. In that case too, the Court laid down the conditions under which intervention by the Member States is permissible: the 23. The Court concluded, then, that the measures to be taken may only be Community legislation protecting the 'flute temporary and provisional in nature, since d'Alsace' was not exclusive (paragraph 16 of they are not based on the exercise of the the judgment). Member States' own powers but rather represent fulfilment of their duty to cooperate under Article 5 of the Treaty 24. It did so, moreover, after stating in (paragraph 23); the provisions adopted or general terms that 'once the rules on the maintained must be compatible with the common organization of the market may be principles of the common organization of regarded as forming a complete system, the the market and must not hinder imports Member States no longer have competence (paragraphs 24 to 27). in that field unless Community law expressly provides otherwise' (paragraph 13). 28. Finally, mention should be made of the judgment in Case 148/85, Marie-Louise 25. In the same way, it was because of 14 Forest, in which the Court stated that lacunae in Community law that, in the Regulation No 2727/75 of the Council of Midden-Nederland judgment of 28 March 29 October 1975 on the common organ- 13 1984, the Court considered to be ization of the market in cereals does not compatible with Article 2 of Council Regu- prevent the adoption by a Member State of lation No 2777/75 of 29 October 1975 on a system of quotas for the milling of wheat the common organization of the market in applying only to domestic human poultry-meat national measures laying down consumption in the Member State requirements concerning the quality and concerned (paragraph 15).
13 — [1984] ECR 1721, 1740, paragraph 29. 14 — Judgment of 25 November 1986 [1986] ECR 3449.
COMMISSION v BELGIUM
29. But that case concerned an area — the 1986 in Case 218/85 Association comité flour-milling sector — in which the économique agricole régional [1986] ECR Community legislature had not adopted 3513 that: 'In the light of the exhaustive rules (paragraph 14 of the judgment) and, nature of the Community system of quality moreover, the Court was able to conclude standards, rules on grading, size, weight that, within that system, the total quantity and presentation laid down by producers' of quotas exceeded the quantity necessary organizations for products to which Regu to meet domestic consumption to such an lation No 1035/72 applies cannot be made extent that it neither constituted a factor compulsory for producers who are not limiting wheat production nor adversely members, since such an extension is not affected agricultural productivity. provided for by the relevant provisions of Community law' (paragraph 16).
30. (d) The case now before the Court is 35. It should be noted that the regulations very different. on that common organization of the market practically all contain detailed rules and comprehensive annexes relating to quality 31. As we know, only certain vegetables standards for a large number of products, (four) are covered by the 'Community* obli including in particular the information gation to indicate on the packaging the which must be shown on packagings, and weight and number of units or bundles, thus it cannot even be said that there is the which the contested national provision appearance of a lacuna. The position simply extended to all products. is that the quality standards for the various products are different.
32. The fact that in this case there is no 36. Furthermore, the Commission has lacuna resulting from a lack of foresight on provided the Court with information as to the part of the legislature is apparent from the origin and history of the Community the previous decisions of the Court. provisions concerning the details to be indicated on the packages of products with which the present case is concerned. From 33. In the Apple and Pear Development that information it is apparent that the limi Council judgment of 13 December 1983, 15 tation thereof to four of the products the Court considered that 'the rules on the covered is, for the time being, a conscious common organization of the market in fruit and deliberate choice on the part of the and vegetables provide for an exhaustive Community legislature. system of quality standards', and the Member States are precluded (subject to 37. It appears that the Commission, having any provision to the contrary) from unilat considered extending the obligation to erally adopting provisions in that regard indicate the weight and quantity to other (paragraph 23); such provisions may only be products, abandoned its plan to do so adopted in accordance with the established because of strong resistance encountered Community procedures. within the Management Committee for Fruit and Vegetables. The reason for that resistance was the fact that certain Member 34. Confirming that approach, the Court States found it difficult to accept the extension of that obligation on account of stated, in its judgment of 25 November the excessive packaging work that it would entail and the risk that, in view of the possi- 15 — Case 222/82 [1983] ECR 4083, 4121, paragraph 23.
OPINION OF MR DA CRUZ VILAÇA —CASE 255/86
bility of loss of weight during transport, States are not entitled to impose obligations objections might be made when the for which no provision was made and thus products reached their destination. to bring into being differing rules governing 38. The Commission's failure to extend the the same matter. obligations laid down for four of the 41. D — In view of the foregoing products covered by the common organ considerations, it is not even necessary to ization of the market to other products was examine the Belgian Government's therefore the result of a deliberate choice arguments relating to the fairness of trans and not an accidental omission or a mere actions and consumer protection or the instance of political obstruction. analogous application of Council Directive 39. For similar reasons — 'the absence of 79/112/EEC of 18 December 1978 on the measures concerning the withdrawal, where approximation of the laws of the Member necessary, of products from the market does States relating to the labelling, presentation not stem from an omission or from an and advertising of foodstuffs for sale to the intention to leave measures of this nature to ultimate consumer. the appraisal of the Member States but is rather the consequence of a considered 42. Besides the fact that this case concerns choice of economic policy'— the Court packagings which are as a rule intended to stated, in the Van den Hazel judgment, cited be used at the wholesale stage, the earlier, that national measures imposing a arguments put forward are not valid in quota on the slaughtering of poultry were relation to the exhaustive rules of the incompatible with Regulation No 123/67 on common organization of the market; they the common organization of the market in would seem to be rather more pertinent to a poultry-meat. discussion of Article 30 of the Treaty and, as the Commission pointed out on several 40. That being a matter falling within the occasions at the hearing, that article is not powers of the Community, the Member at issue.
43. E — Accordingly, I propose that the Court should declare that by adopting and maintaining in force provisions (Article 7 (3) of the Royal Decree of 12 January 1987) requiring the minimum net weight, and the number of units or bundles to be indicated on bulk packages of products grown in Belgium — requirements which are laid down by the Community rules for only four products — the Kingdom of Belgium has failed to fulfil its obligations under the Treaty and those deriving from the regulations on the common organization of the market in fruit and vegetables, in particular Regulation No 1035/72 of the Council of 18 May 1972, Council Regulation No 23 of 4 April 1962, Regulation No 58 of the Commission of 15 June 1962, Regulation No 183/64/EEC of the Council of 17 November 1964, Regulation (EEC) No 1641/71 of the Commission of 27 July 1971 and Commission Regulation No 778/83 of 30 March 1983.
44. Consequently, the Kingdom of Belgium must be ordered to pay the costs.