C-359/89
ECLI:EU:C:1990:406
- Súd
- Súdny dvor Európskej únie
- IČS
- 61989CC0359
- Zdroj
- eur-lex.europa.eu ↗
SAFA
OPINION OF M R ADVOCATE GENERAL D A R M O N delivered on 14 November 1990 *
Mr President, Tribunale Civile di Genova put two Members of the Court, questions to the Court.
3. The first concerns the interpretation of Article 16 of Regulation No 136/66 as 1. The Tribunale Civile di Genova has amended. However, as the Commission has referred two questions to the Court for a correctly observed in its written obser- preliminary ruling on the interpretation and vations, that regulation concerns imports of validity of Article 16 of Council Regulation olive oil from non-member countries in No 1562/78/EEC, 1 or more precisely general, and not specifically from Greece. Regulation No 136/66/EEC of the Imports from Greece were covered by Council, 2as amended by the former regu- Council Regulation No 2749/78/EEC of lation. That article concerns the fixing, by 23 November 1978 on trade in oils and fats means of a tendering procedure, of the between the Community and Greece. 3 amount of import levies on olive oil from Nevertheless the provisions of Article 5 of Greece for the years 1979 and 1980. the latter regulation are wholly similar to those of the aforesaid Article 16, except that the latter refers to 'the world market' and the former to 'the Greek market'. The dividing line between the two measures is laid down in Article 10 of Regulation No 2749/78, which provides that: 'When the 2. The facts are very simple. On products imported into the Community have 18 December 1981 the Società Agricola not been entirely produced in Greece or not Fattoria Alimentare (hereinafter referred to transported directly from Greece into the as 'SAFA') instituted proceedings before the Community, Articles 14, 15, 16, 17 and 20b national court against the Italian Ministry of of the basic regulation shall apply . . . '. 4 Finance in order to recover import levies paid on imports of extra-virgin olive oil from Greece in 1979 and 1980. Before that court SAFA contended that recourse could be had to the tendering procedure for fixing the amount of import levies only in specific 4. It is not for the Court to determine the cases, failing which there would be a breach regulation applicable to the facts of the case of fundamental rights recognized by the pending before the national court. It is Community legal order. Consequently, the indeed unnecessary to remind the Court of the principle to which the Court has consis- " Original language: French tently adhered in preliminary-ruling cases, 1 — Regulation of 29 June 1978 amending Regulation No namely that: 136/66/EEC on the establishment of a common organ- ization of the market in oils and fats (OJ L 185, p. 1). 2 — Regulation of 22 September 1966 on the establishment of a 3 — OJ 1978 L 331, p. 1. common organization of the market in oils and fats (OJ, 4 — By 'basic regulation' is meant Regulation 136/66, as English Special Edition 1965-1966. p. 221). amended-
I-1689
OPINION OF MR DARMON —CASE C-359/89
'The question whether the provisions or minimum levy, having regard among other concepts of Community law, whose inter- things to the rates of levy indicated by the pretation is requested, are in fact applicable tenderers. Any tenderer having indicated a to the case in question lies outside the juris- rate of levy equal to or higher than the diction of the Court of Justice and falls minimum rate shall be declared a successful within the jurisdiction of the national tenderer and shall be obliged to import the court'. 5 quantity of the product specified in his application at the rate of levy indicated by him'. 8For the sake of completeness I should mention finally that 'imports involving quantities which have no effect on the market situation shall not be subject to the At most it may be said that the interpre- abovementioned tendering procedure. In tation accorded to Article 16 of Regulation that case, the levy to be charged shall be the No 136/66 as amended is equally applicable latest minimum levy fixed before to Article 5 of Regulation No 2749/78, importation'. 9 having regard to the similarity of their provisions.
6. It is apparent from a reading of that article that, other than in the specific case of 5. I now turn to the question itself. Under imports involving in quantities which have the system of import levies for olive oil, the no effect on the market, the levy may be Council adopts before 1 October each year fixed by tendering procedure where — that a representative market price and a is to say, in my view, for as long as — the threshold price for the following marketing real trend on the world market cannot be year. 6 If on the importation of untreated determined from the offers on that market. olive oil from non-member countries the threshold price is higher than the cif price ('cost, insurance, freight'), a levy equal to the difference between the two prices is charges. 7The cio price is determined on the basis of the most favourable purchasing possibilities on the world market. However, 7. In its written observations 10 the as is provided for by Article 16(1), 'where Commission indicated that in 1979 and the real trend on the world market in 1980 there was no world price for untreated untreated olive oil cannot be determined olive oil, a situation which remains the same from the offers on that market, the import today. Morocco and Turkey had gradually l e v y . . . shall be fixed by tendering withdrawn from the export market; other procedure'. To that end 'the Commission States prefer to sell treated oil. Tunisian shall periodically fix the rate of the exports were under the control of a State body; finally, in Spain and Greece, which 5 — Judgment in Case 10-69 Portelange [1969] ECR 309, at were not yet members of the Community, paragraph 6; see also judgment in Case 13/68 Salgoil traders were few and engaged in concerted [1968] ECR 453, judgment in Case 28/68 Tonekens [1969] ECR 125 (subparagraphs 7 and 8), judgment in Case action. 35/76 Simmenlhal [1976] ECR 1871 (at paragraph 8), judgment in Case 5/77 Tedeschi 1977 ECR 1555 (at paragraph 19). 8 — Article 16(2) of Regulation No 136/66 as amended. 6 — Article 4(1) of Regulation No 1562/78. 9 — Article 16(3) of Regulation N o 136/66 as amended. 7 — Article 14(1) of Regulation No 1562/78. 10 — Page 9 of French translation.
I - 1690
SAPA
8. Where such a market structure persists must be determined in the light of the for a number of years, there is nothing in essential general aims of the market organ the wording of Article 16 of Regulation N o 1 ization'. 2 136/66 as amended which prevents the levy from being fixed by the tendering procedure throughout the entire period. I propose that the Court's reply to the first question be to that effect. 11. According to the ninth recital in the preamble to Regulation No 136/66, 'in order to stabilize the Community market at the desired level, notably by ensuring that 9. I now turn to the second question, which fluctuations in world market prices do not concerns the validity of Article 16. SAFA affect prices within the Community, claims that Article 16 is contrary to funda provision should be made for charging an mental rights recognized by the Community impon levy corresponding to the difference legal order. In the absence of written obser between the threshold price derived from vations on its part, it is necessary to refer to the market target price and prices ruling on the grounds of the order for reference and the world market'. to the explanations given at the hearing. It appears that the company puts forward essentially two complaints concerning, first, the existence of excessive discretion on the part of the Commission and, secondly, 12. The Commission's discretion must breach of the principle of non-discrimina therefore be appraised in the light of the tion. essential general objective of stabilizing the Community market. In so far as the structure of the world market in untreated olive oil does not allow a market price to be established, recourse to the tendering 10. The first complaint seems inapposite in procedure for fixing the amount of the the light of the Court's decisions import levy seems to be only means of concerning 11 the implementing powers ensuring the stability of the Community accorded to the Commission in the sphere market. of the common agricultural policy. In its judgment of 11 March 1987 in Ran v Commission the Court held:
13. As I have stated, the second complaint concerns a breach of fundamental rights and 'Since only the Commission is in a position more particularly the principle of to keep track of agricultural market trends non-discrimination. It is difficult to see, and to act quickly when necessary, the from a reading of the order for reference, Council may confer on it wide powers of why recourse to the tendering procedure discretion and action in that sphere, and should disrupt the equal treatment of when it does so the limits of those powers traders. Where there is no market price on the world market in olive oil each trader II — J u d g m e n t in Case 23/75 Rey Soda [1975] ECR 1279, may acquire quantities of olive oil at very paragraph 11; judgment in Joined Cases 279, 280, 285 and 286/84 Rau v Commission[1987] ECR 1869, paragraph 14; Case C-350/88 Société fiancane dei biscuiži Deiacre aud 12 — Joined Cases 279, 280, 285 and 286/84, cited above, at Others V Commission[1990] ECR I-395, paragraph 2. paragraph 14.
I - 1691
OPINION OF MR DARMON — CASE C-359/89
different prices and consequently propose Greece by fixing the minimum levy at an different levies having regard to the extremely high level. requirements of profitability. The Commission, by fixing a minimum levy, ensures that import prices are maintained at 15. It is sufficient to point out in this a certain level so as not to disrupt the connection that the national court has Community market. Traders who propose sought a ruling on the validity of Article 16 levies higher than or equal to that threshold of Regulation No 136/66 as amended in so may well obtain the same profit from far as it confers certain powers on the imports subject to different levies. The Commission, and not of a decision adopted complaint is therefore untenable. in pursuance of that provision having regard to the allegedly incorrect manner in which it was applied. In other words, it is not necessary for the Court to examine the 14. At the hearing SAFA's representative case — which is not envisaged by the put forward arguments concerning the national court — of a manifest error of discretionary use by the Commission of a appraisal, a misuse of power or a manifest power which is already in itself discre- exceeding of the limits of its discretion 13 by tionary, arguing that the Commission could the Commission in implementing the prevent any imports of virgin olive oil from provision in question.
16. I therefore propose that the Court rules as follows:
'(1) Article 16 of Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organization of the market in oils and fats, as amended by Council Regulation No 1562/78/EEC of 29 June 1978, must be interpreted as authorizing the use of the tendering procedure to determine the import levy on untreated olive oil for the years 1979 and 1980.
(2) Consideration of the preliminary question has disclosed no factor of such a nature as to affect the validity of Article 16 of that regulation.'
13 — Judgment in Case 29/77 Roquette [1977] ECR 1835, at paragraph 20; judgment in Case 136/77 Racke [1978] ECR 1245, at paragraph 4.
I-1692