C-46/89

SICA AND SIPEFEL v COMMISSION

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 12 July 1990 *

Mr President, movement within the Community for the Members of the Court, products in question at the end of the tran­ sitional period (Article 83(2) of the Act of Accession).

1. The present action, brought by Société d'initiatives et de coopération agricoles (SICA) and Société d'intérêt professionnel As the Court itself has stated, 3 the des producteurs et expéditeurs de fruits, application of the STM consists of three légumes, bulbes et fleurs d'Ille-et-Vilaine elements, namely the fixing of indicative (Sipefel), is for compensation for damage import ceilings, the monitoring of devel­ suffered as a result of the — allegedly opments in trade between the acceding unlawful — adoption of Commission Regu­ States and the Community of Ten and lation (EEC) No 530/88 of 26 February (where appropriate) the introduction of 1988 withdrawing new potatoes from protective or definitive measures on trade. the list of products covered by the supplementary trade mechanism (hereinafter referred to as 'STM'). 1 Article 81(3) of the Act of Accession provides that, having regard in particular to the situation at the level of the production 2. In order to give a clearer idea of the and marketing structure of the products in criticisms made by the applicants, it is question, it may be decided, under the necessary to describe the legislative context procedure provided for in Article 82, to of Regulation No 530/88. withdraw certain products — one of which is new potatoes — from the list of products subject to the STM.

In order to assess the situation in a Member State subject to the STM, Article 6 provides that account is to be taken in particular of The situation is therefore diametrically the trend in domestic prices in the Member opposed to that of withdrawal of a product State concerned, the trend in domestic from the STM. demand in that State and the quantities of products forming the subject of trade, without further processing or after processing, between the Member State The decision to withdraw a product from concerned and the other Member States and the STM is inspired by the general principle non-member countries. of freedom of trade and the conditions which apply to it derive directly from the Act of Accession, whereas Articles 5 and 6 of Regulation No 569/86 authorize the And it is precisely on the basis of that Commission to limit imports, thus making a provision that the applicants level their main temporary exception to that principle. criticism: they claim that, in adopting Regu­ lation No 530/88, which withdrew new potatoes from the list of products subject to the STM, the Commission failed to comply Furthermore, more generally, it may be with the requirements laid down by that observed that Regulation No 569/86 relates provision. only to the conditions for the application of the STM system and does not cover the abolition of that system — à matter which, as I have said, is governed I directly by the The third recital in the preamble to that Act of Accession, in particurar Article 81(3) regulation merely states that trade in new thereof. potatoes had followed a normal pattern over the two previous years and that it was therefore no longer necessary to maintain surveillance of the trend of trade in that In this first respect, therefore, the product by means of the STM. applicants' criticism appears to be unfounded.

I would add that, in taking account of the overall trade in new potatoes between Spain and the Community of Ten, rather than The STM system, in so far as it provides for trade between Spain and the individual the issue of an import licence for products Member States, the Commission again acted from non-member countries, is intended to correctly and in conformity with the logic ensure, pursuant to Article 85(4) of the Act of the STM system, which in any event does of Accession, that Community preference is not provide for a similar valuation of upheld and to make certain that distur­ separate data. bances in the market caused by imports from non-member countries are not incor­ 5 _ Judgments in Case 289/83 CAARM v Commission [1984] rectly attributed to imports from Spain, ECR 4295 and in Case 114/83 Société d'initiatives et de coopération agricoles v Commission[1984] ECR 2589. whereas the system established by the

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OPINION OF MR TESAURO — CASE C-46/89

Council under the abovementioned In fact, such an approach would lead to the protocols is intended for statistical unfair consequence of blaming the surveillance of trends in imports from Commission for damage resulting from an non-member countries, with a view to the alleged failure to act on the part of the dismantling of tariffs. Council.

In the absence of any legal link between the 8. Since, in my opinion, the applicants have two systems, the applicants' argument that failed to prove any unlawful conduct on the the Commission is under an obligation to part of the Commission, I consider it continue to apply the STM system to new unnecessary to examine whether the other potatoes until the Council adopts appro­ conditions laid down by the Court for the priate surveillance measures in respect of liability of the Community to be incurred products imported from non-member under the second paragraph of Article 215 countries appears to have no basis. of the Treaty have been fulfilled.