C-181/88

DESCHAMPS AND OTHERS v OFIVAL

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 13 June 1989 *

Mr President, premium, are certain of obtaining the Members of the Court, seasonally adjusted basic price.

3. On those grounds, they applied to the defendant in the main proceedings for a A — The facts variable slaughter premium or, alternatively, a premium calculated on the basis of the difference between the officially determined market price at the time they sold their animals and the basic price prevailing at the 1. The cases in which I am delivering my same period. Opinion today concern the question whether the various rules governing premiums provided for under the common organization of the market in sheepmeat 4. Following the rejection of their and goatmeat 1 for various regions of the applications by the defendant in the main Community are compatible with the proceedings, the tribunal administratif de principles of non-discrimination, equal Dijon and the tribunal administratif treatment and the free movement of goods d'Amiens, to which they appealed, referred laid down in the EEC Treaty. questions to the Court of Justice concerning the compatibility of Articles 5 and 9 of Council Regulation No 1837/80 with the abovementioned principles of the EEC Treaty.

consider it necessary first of all to define the organization of the market in sheepmeat subject-matter of these proceedings. The and goatmeat established by Regulation No issue in the main proceedings is essentially 1837/80 had still not brought about the whether the plaintiffs may claim a premium complete integration of the different which is greater than that paid to them to regional markets and was still in the process compensate them for their loss of income. of gradual development into a single Consequently, the compatibility of the market. Although Regulation (EEC) No common organization of the market in 871/84 4abolished reference prices for the sheepmeat and goatmeat with the principles six regions set up for the purposes of that laid down in the EEC Treaty needs to be common market organization, there were considered only in so far as that organ­ still differences between those regions, the ization prevents a higher premium from most important being that one of the market being paid. In so far as the validity of Regu­ support mechanisms, namely the variable lation No 1837/80 has given rise to other slaughter premium, was permitted in only objections, not connected with the claims of one region, namely region 5 (Great Britain). the plaintiffs in the main proceedings, consideration need not be given to them because it is not for the Court, in the context of a reference for a preliminary ruling, to give consultative opinions on points of law not connected with the main proceedings.

DESCHAMPS AND OTHERS v OFIVAL

agricultural market organization, the EEC 12. The variable slaughter premium may be Treaty provides that in working out the paid in Great Britain only if no intervention common agricultural policy and the special measures in the form of purchases by the methods for its application, account is to be intervention agencies in respect of fresh taken of the structural and natural sheepmeat have been adopted and if the disparities 5between the various agricultural prices recorded on the representative regions and the need to effect the appro­ markets in that region are below a 'guide priate adjustments by degrees. level' corresponding to 85 % of the basic price referred to in Article 3(1). The amount of the premium is equal to the difference between the seasonally adjusted guide level and the market price recorded in that 10. Before considering the question whether region. In addition, account is taken of the certain arguments put forward in this case fact that the variable slaughter premium has would lead to the conclusion that, notwith­ been paid when the premium to be paid by standing the cases cited above, Articles 5 way of compensation for loss of income is and 9 of Regulation No 1837/80 are calculated because that premium is reduced invalid, the various price support mech­ by the weighted average of the variable anisms should be briefly described. premiums actually paid (Article 5(6)).

11. At present the common organization of 13. The loss of revenue represents any the market in sheepmeat provides for the difference there may be between the basic following stabilizing measures: price and the arithmetical mean of the market prices recorded in each region. The premium to offset loss of revenue is fixed at the end of each marketing year, whereas the variable slaughter premium is paid during (i) a system of premiums intended to the marketing year. compensate sheep farmers for loss of revenue (Article 5);

payment on account is 30% of the amount infringement of the principle of equal of the foreseeable premium. treatment which has placed the plaintiffs in particular at a disadvantage. Since the variable slaughter premium is calculated weekly and paid very rapidly, it enables 'out-of-season' producers (such as the plaintiffs) to be compensated for the 15. However, in derogation from that difference between the guaranteed price and provision, Commission Regulation (EEC) the market price at the time they sell their No 3728/86 of 15 December 1986 7fixed animals. However, since the premium for the advance for the 1986 marketing year loss of income paid in region 2 (France) is at 75 % of the estimated premium. calculated on the basis of the annual arith­ Furthermore, by decision of 16 December metical mean of the prices recorded weekly 1986, the Council authorized the French at national level, the final income of an Republic to grant aid in the same amount to out-of-season French producer who sold his sheep farmers whose holdings were situated products in a week in which the price in areas which are not less-favoured areas. 8 recorded was very much below the basic price would be below the amount of the seasonally adjusted basic price as fixed by the Community authorities.

DESCHAMPS AND OTHERS v OFIVAL

21. The payment of the variable slaughter 25. Even though in this case the comparison premium during the marketing year is, in a between the premium for loss of income and way, an advance payment of the premium the variable slaughter premium has been at for loss of revenue. However, producers in the centre of the debate, it should none the less-favoured areas may also receive an less be pointed out that those two market advance payment in the form of a payment support mechanisms are not alternatives in on account of 75 % of their loss of income. the sense that one is applicable in region 5 Moreover, in the 1985/86 marketing year, (Great Britain) and the other in the other France was authorized to make the same regions of the Community. The alternatives payment on account, by way of State aid, are rather, on the one hand, the variable until the end of that marketing year to slaughter premium paid in region 5 under producers in areas not regarded as less Article 9(1) of Regulation No 1837/80 and favoured. intervention in the form of purchases of fresh sheepmeat under Article 6(1)(b), on the other. The premium for loss of income may, however, be paid in all regions of the Community; having regard to the compen­ sation mechanism laid down in Article 5(6) of Regulation No 1837/80, the payment of 22. In the result, it must be concluded that the variable slaughter premium in region 5 is Community sheepmeat producers receive merely a sort of advance payment of the the same income support and that therefore premium for loss of income, which will be the principle of equal treatment has not paid in full at the end of the marketing year. been infringed.

slaughter premium between now and the during the marketing year in the form of end of 1992. 9 the variable slaughter premium, whereas producers in other Community regions receive the payment only after the end of the marketing year. However, the fact remains that because of the higher market price which they obtain, producers in other regions of the Community likewise obtain, even during the marketing year, a higher income from sales on the market. That 27. The special provisions for region 5 significantly reduces the advantage enjoyed (Great Britain) appear still to be justified in by producers in region 5 (Great Britain). the light of the abovementioned case-law of Moreover, the variable slaughter premium the Court; they are based on objective does not guarantee producers in region 5 criteria, namely the significantly lower (Great Britain) an income equal to the market prices in that region caused by seasonally adjusted basic price, as the considerable imports of sheepmeat from plaintiffs in the main proceedings initially non-member countries. Those traditional claimed, but merely an income equal to the imports are protected by commitments guide price, which is equal to 85 % of the entered into in the context of the GATT basic price. It should also be noted that, at and by voluntary restraint agreements with, least in the areas of the Community 10 inter alia, New Zealand. Furthermore, regarded as less favoured, payments on care was taken to ensure that only a very account equal, in 1986, to 75 % of the fore­ small part of the meat imported from New seeable amount of the premium may be Zealand was marketed in France. Of the made before the end of the marketing year. maximum quantity of 245 500 tonnes carcass weight fixed in 1980, only 3 500 tonnes could, since 1984, be imported into France, that quantity increasing by 10% per year afterwards. 11

market prices recorded for each region. If as countries, or that they had any intention of a result out-of-season producers suffer a so doing, I do not think it necessary to loss of income for which they receive no consider the questions of the free movement compensation, producers in all Community of sheepmeat or the rules governing external regions may be affected and not just those trade. A reply to those questions is not in France. necessary in order to resolve the legal issues in the main proceedings. 30. However, the plaintiffs in the main proceedings cannot derive from the EEC 32. To sum up, my conclusion is that these Treaty any entitlement to higher market proceedings have not disclosed any factor prices and equal market support premiums, which, in contrast to the previous cases as they claimed at the hearing. decided by the Court, could now affect the validity of Council Regulation No 1837/80 31. Since there is nothing in the main of 27 June 1980. However, if the Chamber proceedings to indicate that the plaintiffs in is inclined to draw different conclusions, I this case engaged in intra-Community trade recommend that the issue be referred to the in sheepmeat or in trade with non-member full Court.

C — Conclusion

33. Consequently , I propose that the Court should rule as follows:

'Consideration of the question has disclosed no factor of such a kind as to affect the validity of Council Regulation No 1837 / 80 , as amended by Council Regu­ lation No 871 / 74 . '