C-27/89
ECLI:EU:C:1990:113
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OPINION OF MR TESAURO — C A S E C-27/89
O P I N I O N OF MR ADVOCATE GENERAL TESAURO delivered on 13 M a r c h 1990 *
Mr President, In the first place, the applicant argues that Members of the Court, Regulation No 400/86 does not contain a special intervention measure of the kind envisaged by the basic regulation 3but may rather be described as an intervention through which the Commission, by arro- 1. This request for a preliminary ruling gating to itself powers properly belonging to concerns the validity of Commission Regu- the Council, altered the price structure on lation (EEC) No 400/86, 1 which was the cereals market. previously considered by the Court in Case 167/88. 2 The judgment in that case provides an answer to many of the doubts regarding validity expressed in these proceedings, especially the doubts surrounding the geographical differentiation of the special intervention measure at issue. 3. In that connection, it must be explained However, the task remains of examining at the outset that in the 1985/86 marketing certain matters not considered in the year the Council had not been able to fix abovementioned judgment, concerning the the agricultural prices for the sector. Faced specific issue of the special intervention with the task of dealing with the legal price established by the Commission in vacuum due to the Council's failure to act, Regulation No 400/86. the Commission, in order to ensure continuity in the operation of the agri- cultural policy, took the precautionary step of fixing the intervention price in the cereals First, it is denied that the Commission is sector by Regulation (EEC) No 2124/85. 4 empowered to adopt the measure in The intervention price was established by question and, secondly, even if it is accepted retaining the price for the preceding year, that the Commission does have such subject to a slight reduction to take account powers, the manner in which it has of the need to control surpluses. exercised them is challenged.
Powers of the Commission On the other hand, no decision was adopted on precautionary measures with regard to the reference price. 2. The powers of the Commission are chal- 3 — For the purposes of this Opinion, 'basic regulation' means lenged on two counts. Regulation No 2727/75, as amended by Council Regu- lation (EEC) No 1143/76 of 17 May 1976 (OJ 1976, L 130, p. 1). When reference is made to versions of Regu- * Original language: Italian. lation No 2727/75, as amended by regulations other than 1 — Commission Regulation (EEC) N o 400/86 of 21 February Regulation No 1143/76, the particulars of the amending 1986 (OJ 1986, L 45, p. 22). regulation will be cited. 2 — Judgment of 8 June 1989 in Case 167/88 Association 4 — Commission Regulation (EEC) N o 2124/85 of 26 July générale des producteurs de blé v O M C [1989] ECR 1653. 1985 (OJ 1985, L 198, p. 31).
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It is worth recalling that the reference price, The Commission cannot, therefore — at besides being relevant for other specific least, not if it is to observe the fundamental purposes, serves as an essential element for purpose of the basic provisions — introduce the adoption of special intervention the special measures without taking into measures under Article 8(2) of the basic account the reference price already fixed. regulation.
4. Of course, the foregoing applies in normal circumstances. We must now Such measures are designed as a means of consider the situation in a case such as the supporting, in adverse market conditions, present one, in which the Commission finds the price level of common wheat of bread- itself obliged to carry out its task of making quality by reference to a target price managing the agricultural policy in a legal which is, precisely, the reference price. vacuum.
It must be borne in mind that, as a general Thus, in providing a separate reference rule, the Commission is in any event price for that quality of wheat, at a higher required to carry out its duties so as to level than the normal intervention price, the avoid the risk of paralysis to the functioning basic regulation also introduced a coherent of the common agricultural policy. package of specific instruments — including special intervention measures — in order to 'steer' the market towards the desired goal. In practice this means that, whenever necessary, the Commission must be able to proceed with all the intervention measures that it is empowered to take, even in In short, therefore, the adoption of special circumstances where it does not have at its intervention measures necessarily implies disposal all the information which can that the Commission — which is empowered normally be used. to apply them under Article 8(4) of the basic regulation — must make a dual assessment.
Thus, should the Council fail to lay down the reference price, there is no cause to rule out a priori the possibility of the In the first place, it has to analyse the Commission's reconstructing an appropriate market trends, and in particular the reference price with a view to the possible movement and future prospects not only of adoption of a special measure, based on its prices but also of supply and demand, both knowledge of the trends and characteristics within the Community and outside it; in the of the market in question. second place, that configuration of market conditions must be compared with the target, represented by the reference price, and a decision accordingly has to be taken That is borne out by the fact — confirmed as to whether or not a support programme during the oral procedure — that the in the form of a special intervention divergence between the reference price for measure is called for. common wheat of bread-making quality and
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the common single intervention price had more stringent overall plan 5— to revise remained perfectly steady over the years downwards the level of incentives for preceding the marketing year in question. producers, was entitled to consider the application of a special intervention measure to be justified.
That is an important factor, inasmuch as it demonstrates that the Community legis- lature was consistent in dealing with the 5. In doing so, the Commission has clearly production of common wheat of bread- not substituted its own findings on agri- making quality, namely in applying a cultural prices for those of the Council: it specific incentive which did not vary in has not laid down a general definition of amount. the reference price, even merely as a precautionary measure.
Furthermore, the stability of the difference between the reference price and the inter- vention price — despite there being a degree In the exercise of its powers for the super- of autonomy between them — was a feature vision and administration of the agricultural familiar to all the traders in the cereals markets and in the absence of any express sector; and this is a further reason for determination by the Council, the considering that the Commission could use Commission simply based its analysis on the it as a basis for its assessments, in order to reference price normally applied to common determine whether the decline in the market wheat of bread-making quality. recorded during the marketing year in question justified support measures.
I therefore take the view that the measure in It is common ground that at the beginning question is indeed a 'special intervention of 1986 the prices of common wheat in measure' within the meaning of Article 8 of almost all the Member States were fluc- the basic regulation, and thus falls within tuating around the level of the intervention the Commission's powers, rather than an price and that, as the first recital in the arbitrary amendment of the price structure preamble to Regulation No 400/86 notes, of the cereals sector. there were serious risks to the stability of the market in a situation characterized by 5 — A restrictive approach of that kind had already become apparent in respect of the previous marketing year, in considerable stocks having no immediately Council Regulation (EEC) No 1019/84 of 31 March 1984 foreseeable outlets. fixing cereal prices for the 1984/85 marketing year (OJ 1984, L 107, p. 4); in particular, the second recital states that the policy of caution on prices should become a policy of restriction, requiring a reduction both of the intervention price and of the reference price. As far as the Commission's practice is concerned, it should be noted that the restrictive approach is reflected in Commission Regulation (EEC) No 1810/84 of 28 June 1984 (see the In those circumstances the Commission, fourth recital) containing a special intervention measure comparing current trends with the tradi- for the 1984/85 marketing year (OJ 1984, L 170, p. 33) and also in Commission Regulation (EEC) N o 2124/85 of tional reference price for common wheat of 26 July 1985 (OJ 1985, L 198, p. 3 1 ; see the second bread-making quality, and possibly also recital) adopting — as seen above — the precautionary pricing measures necessitated by the Council's continuing taking account of the need — as part of a failure to act.
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6. The applicants in the proceedings before From the 1981/82 marketing year onwards, the national court also took issue with the the Council established annually the powers of the Commission in a more reference price for wheat of medium specific context. quality, indicating at the same time, in a foot-note, the reduction to be applied in the case of special measures regarding wheat of minimum quality (see Council Regulations Nos 1950/81, 6 1452/82 7 and 1564/83 8 fixing cereal prices for the 1981/82, 1982/83 and 1983/84 marketing years During the oral procedure in particular, the respectively). applicants stressed that the Commission, in fixing the special intervention price (that is to say, the price at which the quantities of wheat qualifying for the special intervention scheme were to be bought in by the national In Regulation (EEC) No 1019/84, however, authorities), was not empowered to apply the Council considered it preferable that the reductions to take account of the fact that price to be applied in the event of special the quality of the wheat subject to the regu- intervention measures for minimum bread- lation was lower than the medium quality. making quality should not in future be set by the annual price-fixing regulation but should be 'determined when such measures are introduced'.
7. It should be pointed out that under According to the applicant, the Council did Article 3(2) of Regulation (EEC) No not thereby intend to leave to the 2727/75, as amended by Article 1 of Regu- Commission the task of establishing the lation (EEC) No 1151/77, the reference reductions for wheat of lower than medium price is fixed for common wheat which quality but was reserving itself the right to meets medium bread-making quality set those reductions, not — as before — requirements; however, since the actual aim prior to the beginning of the marketing year of the special intervention measures (namely but when the measures themselves were to support the market in relation to the adopted. reference price) may also be attained by means of support measures for wheat of other than medium quality, Article 8(2) of Regulation No 2727/75, as amended by Anicie 5 of Regulation No 1151/77, 8. I do not find that line of argument provides that the special measures may convincing for a number of reasons. apply to wheat of a quality other than that for which the reference price has been fixed, and in particular (see the third recital in the preamble to Regulation No 1151/77) to First, the Commission is empowered under wheat meeting the minimum requirements the management committee procedure to for breadmaking: in that event, however, a reduction is applied to the price which 6 — Council Regulation (EEC) No 1950/81 of 13 July 1981 would have been fixed had the special (OJ 1981, L 198, p. 3). 7 — Council Regulation (EEC) No 1452/82 of 18 May 1982 measure related to wheat of medium (OJ 1982, L 164, p. 6) quality. 8 — Council Regulation (EEC) No 1564/83 of 14 June 1983 (OJ 1983, L 163, p. 1).
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take decisions regarding the nature and quality were to be calculated at the time of application of the special intervention applying the special intervention measures, measures (see Article 8(2) of the basic regu- it must be held to have wished to extend to lation). that minimum quality the Commission's power to determine the appropriate adjustment.
Those powers of implementation also cover the determination of the amount of support In the light of those points the conclusion to to be granted in any given situation; conse- be drawn is that the Commission was quently, it is generally for the Commission empowered to adopt the special intervention to specify the special intervention price, measures in Regulation No 400/86. having regard, of course, to market requirements. The special intervention price must, however, be considered to embrace all its components parts, and hence any Improper exercise by the Commission of its increases or reductions due to the quality of powers the product. Moreover, Article 7 of Regu- lation No 2727/75 provides — still with reference to the intervention price — that 9. The interveners in the proceedings before the detailed rules governing the minimum the national court note an inconsistency quality and quantity required of each cereal between the special intervention measure in to make it eligible for intervention, together Regulation No 400/86 and the measure with the scales of price increases and which had been the subject of Regulation reductions applicable for the purposes of (EEC) No 1810/84 during the previous intervention, are to be laid down in marketing year. Reduced to its simplest accordance with the management committee form, the problem raised is that Regulation procedure. No 400/86 applied a greater reduction coefficient in respect of a wheat of higher quality than the wheat qualifying for the special intervention measure the previous It must further be noted that, in Regulation year. No 1151/77, the Council indicated generally that special intervention measures may cover wheat of other than medium quality, and in particular wheat of minimum 10. In this regard it must be observed that quality; thus, although in the course of the mere fact that one act diverges from certain marketing years the Council itself another, earlier act cannot be considered to undertook the fixing of the reduction impair its validity, especially in a situation applicable for the minimum quality, even such as this, where it was specifically during those years the Commission retained provided that the prices (and the appro- the power to apply all the price adjustments priate reductions) were to be calculated at for qualities other than the minimum the same time as the special intervention quality. measure was applied.
Moreover, in assessing the validity of any Consequently, when, as was seen above, the given act, regard must be had to the broad Council provided in Regulation No 1019/84 margin of discretion enjoyed by the that the reductions for wheat of minimum Community institutions in the exercise of
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their powers over agricultural matters — a twofold decision contained in Regulation discretion such that, as the Court has No 400/86, namely to increase the rate of stressed on several occasions, judicial review reduction and to raise the qualitative must confine itself to examining questions requirements, was incorporated into a more of strict legality. 9 general plan, familiar to traders (and endorsed by the economic consequences of That discretion, in the context of the Regulation No 1810/84), designed not only measures in question, covered — as I have to lower the general level of incentives for already had occasion to observe — both the producers in order to control the problem fixing of the special price level generally of cereal surpluses, which has worsened and, more specifically, the fixing of the over the years, but also to pursue a more quality entitled to benefit under the special selective policy as regards quality, by intervention measure, and hence the corre- concentrating special incentives on higher- sponding reductions to be applied to the quality production. special price for medium-quality wheat. It may therefore be concluded that the Commission exercised its powers properly 11. Furthermore, it is clear from the when setting the level of the special price in documents before the Court that the Regulation No 400/86.
12. In the light of all the foregoing considerations, I propose that the following answer should be given to the national court:
'Consideration of the question submitted for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of Commission Regulation N o 400/86.'
9 — See most recently the judgment of 14 February 1990 in Case C-350/88 Bisanti Deiacre and Others v Commission [1990] ECR I -395.
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