C-212/87

The problem has already come before the Court, in Case 218/85 Cerafel v Le Campion (judgment of 25 November 1986, [1986] ECR 3513) in which I acted as Advocate General. I therefore propose merely to repeat that, pursuant to Article 2 Before the national court, Larroche of Law No 75-600 of 10 July 1975, contended that the extension erga omnes of on intertrade agricultural organizations the intertrade agreements for the producers (Journal officiel de la République française and processors of the vegetables in question (JORF), 11.7.1975, p. 7124), as last (Ministerial Decrees of 10 December 1981, amended by Law No 80-502 of 4 July 1980 30 September 1983, 13 November 1984 and (JORF, 5.7.1980, p. 1670), the competent 18 December 1986, published respectively in minister may, under specified conditions JORF, 9.1.1982, p. 306, 15.10.1983, p. 9359, and by means of decree, extend agreements 12.4.1984, p. 11032, and 13.1.1987, p. 460), concluded by the legally recognized organ- were contrary to the Community rules on izations to producers who are not members agriculture and competition. By imposing on thereof. Such organizations may, in all the processors and canners a minimum addition, be authorized to levy on these purchase price for the French raw material, producers the contributions necessary to put this measure in fact prevented independent the agreements into effect. traders from effectively competing on the relevant markets. In addition, under Article 3 (2) of the aforementioned law, the contri- butions intended to finance the activities of the association are also levied on vegetables It is precisely the contributions for the imported from other Member States; they 1982/83 and 1983/84 marketing years for therefore constitute a disguised import duty.

In view of the importance of the problems (Regulations Nos 3284/83 and 3285/83 of thus raised, the national court stayed 14 November 1983, Official Journal 1983, proceedings and, by decision of 8 July 1987, L 325, pp. 1 and 8). As regards the asked the Court for a preliminary ruling on abovementioned vegetables, that system the following questions: entered into force on 1 January 1986 (Regulation No 1977/85 of 16 July 1985, Official Journal 1985, L 186, p. 2). For the purposes of this case therefore it can only be taken into account in so far as it is (a) In the light of Articles 39, 42 and 85 (1) applicable to the claim concerning the of the EEC Treaty and Regulation No contributions payable for the 1985/86 26/62 of the Council of the European marketing year. Communities of 4 April 1962, can the fixing by an intertrade agreement extended to all the producers concerned of a minimum purchase price be I would note in addition that, by virtue of regarded as a concerted practice which the reference in Article 1 of Regulation No may affect trade between Member 1035/72 of 18 May 1972 (Official Journal, States and have as its object or effect English Special Edition 1972 (II), p. 437) to the prevention, restriction or distortion the relevant headings of the Common of competition within the common Customs Tariff, celery, scorzonera and market? French beans come within the common organization of the market in fruit and vegetables set up by that regulation. It follows that the national court's questions make it necessary to determine in the first (b) Is the possibility made available by a place whether the extension erga omnes of national law of providing, by the the intertrade agreements is not already in conclusion of an intertrade agreement itself incompatible with the Community which may be extended erga omnes, for rules regarding that organization of the the imposition of fees on products orig- market. inating in other Member States to be regarded as incompatible with Article 95 of the EEC Treaty? Furthermore, since the measures in question concern solely vegetables which are still in the fresh state, Unilec's argument that the The parties to the main proceedings, the dispute should be determined in the light of French Government and the Commission of the Community rules relating to processed the European Communities submitted products must be rejected. Nor can it be written observations and presented oral claimed that in the present case the argument at the hearing. exceptions laid down in Regulation No 1035/72 for products intended for industrial processing are relevant since those exceptions actually relate not to producers' organizations, but to quality standards. 2. I should like at the outset to make various general comments. Since 1983 the Community legislation makes provision for a common system for the extension of 3. That having been said, I may now turn agreements not unlike the French system to the first question, whereby the national

This analysis applies perfectly to the case At paragraph 18 of the decision in the more now before the Court. The extension in recent judgment, Le Campion, — to which question in fact introduces with regard to I have already referred — the Court stated the national market a uniform system of in particular: 'The common organization of guaranteed prices for all the producers the market in [the fruit and vegetables] which, effectively, replaces the system of sector is characterized by two levels of withdrawal prices which organizations may intervention. First of all, under Article 15 of impose only on their members and therefore Regulation No 1035/72, producers' groups negates the machinery of withdrawal from the market in the conditions laid down by may fix for certain products a withdrawal the Community legislature. Accordingly it is price below which they will not offer for incompatible with the rules of the common sale products supplied by their members. By organization. withdrawing products, producers' organiz- ations are able to stabilize prices; in certain circumstances, financial compensation may be granted to cover the cost of withdrawal. Secondly, Article 19 . . . establishes . . . measures for certain products, . . . appli- On the other hand, the entry into force of cable to all producers. Intervention under Regulation N o 3284/83 on 1 January 1986 that article may, however, take place only has not substantially altered this situation. where the Commission has found that the Clearly, the new Article 15 b of Regulation market in question is in a state of serious N o 1035/72 empowers the Member States crisis; once such a finding has been made, to extend the binding effect of various rules the Member States must, through the inter- laid down by producers' organizations to

producers who do not belong to such are collected by Unilec are then used by the organizations. However, this power is latter, in accordance with the terms of the subject to clear limits rattorte materine et agreements, to subsidize initiatives to territorii and to a long list of clearly defined improve productivity and to promote conditions, including a request by the commercially the trade in preserved organization, the absence of interference vegetables. with intra-Community trade, notification to the Commission, the latter's approval. Secondly, the rules which may be extended must concern only the production, marketing and advertising of the goods (Article 15 b (1) (a), (b) and (c)). Finally the rules concerning withdrawal from the Having said this, I shall not go into Unilec's market may be extended only with regard to lengthy examination of every aspect of this the products listed in Annex II to Regu- system. In order to reply to the national lation N o 1035/72, which, it will be noted, court it is sufficient to cite paragraph 22 of include the vegetables in question in this the decision in the Le Campion case where case. the Court held that the obligation in question should be regarded as 'unlawful in so far as it serves to finance activities which are themselves held to be contrary to Community law. It is for the national court, therefore, to determine what part of the contribution required from non-members serves to finance such activities'. In sum, the legislation in question is too thorough and detailed for it to be possible for the Member States to retain the wide margin of manoeuvre claimed by the French Government and Unilec. If this is the case, examination of the compatibility of the contested measures with Article 85 of the There is, it seems to me, nothing more to be Treaty becomes superfluous. It follows from added with regard to this case. It may, the aforesaid considerations that Regulation nevertheless, be helpful to the national court N o 1035/72 deprives Member States of any to know that 'if the revenue from such a power to make binding on all the producers charge [a national charge levied on and processors of the vegetables not listed in domestic and imported products according Annex II a system of minimum purchase to identical criteria] is intended to finance prices introduced by national agreements. activities for the special advantage of the taxed domestic products, it may follow that the charge . . . constitutes discriminatory taxation in so far as the fiscal burden on domestic products is neutralized by the advantage which the charge is used to finance, whilst the charge on the imported 4. Let us now consider the obligation to pay products constitutes a net burden' the contributions. I note in the first place (judgment of 21 May 1980 in Case 73/79 that such charges are also levied where the Commission v Italy [1980] ECR 1533, French processors import their supplies of paragraph 15 of the decision). Once again, raw material from other Member States. these words are entirely appropriate to the The proceeds of these contributions which case in issue.