C-133/93

* Original language: English. 1 — OJ 1988 L110, p. 35. 2 — OJ 1991 L. 163, p. 13.

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OPINION OF MR JACOBS — JOINED CASES C-133/93, C-300/93 AND C-362/93

The legislation No 1114/88 provided for the introduction of maximum guaranteed quantities. It added a fifth paragraph to Article 4 of Regulation No 727/70 which stated as follows:

7. With a view to controlling the increase in Community production, Regulation The reduction referred to in the second sub­ paragraph shall not exceed 5% for the 1988 harvest and 15% for the 1989 and 3 — OJ, English Special Edition, 1970 (I), p. 206. 1990 harvests.

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7 8 For the purposes of applying this paragraph, Regulations (EEC) Nos 2158/89, 2046/90, 9 10 the Commission shall establish before 2267/91 and 2178/92 established the 31 July whether production exceeds the quantities actually produced and determined maximum guaranteed quantity for a variety the prices and premiums payable for the or group of varieties. 1988, 1989, 1990 and 1991 harvests respec­ tively.

4 — OJ 1989 L 129, p. 16. 5 _ OJ 1990 L 132, p. 25. 6 — Subsequently, Council Regulation (EEC) No 1737/91 (OJ 7 — OJ 1989 L 207, p. 15. 1991 L 163, p. 11) fixed tile overall maximum guaranteed 8 — OJ 1990 L 187, p. 23. quantity at 390 000 tonnes of leaf tobacco for each of the 9 — OJ 1991 L 208, p. 26. 1991 to 1993 harvests. Council Regulation (EEC) No 860/92 (OJ 1992 L 91, p. 1) provided that that reduction 10 — OJ 1992 L 217, p. 75. must not exceed 23 per cent for the 1992 harvest. 11 — OJ 1992 L 215, p. 70.

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14. In the main proceedings, Mr Crispoltoni disputes the demand for reimbursement that he received from the Fattoria on the ground that Regulation No 1114/88 ('the Regula­ Case C-133/93 tion') is invalid. As a result, the referring court has requested a preliminary ruling on the validity of that regulation 'and the regu­ lations adopted in order to implement it'.

13. Mr Crispoltoni is a tobacco planter at Lerchi in the province of Perugia. He deliv­ ered to the Fattoria Autonoma Tabacchi di Città di Castello ('the Fattoria'), a profes­ sional association to which he belongs and 15. In the order for reference, the referring which carries out the first processing and court expresses doubts with regard to the market preparation of leaf tobacco, a certain validity of the Regulation and the regulations

12 — OJ 1992 L 351, p. 11. 13 — See Regulation No 2178/92, above, note 10.

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CRISPOLTONI

adopted for its implementation. It questions the questions referred are not hypothetical whether those regulations are appropriate in and that the preliminary reference procedure 17 order to attain the objectives which they is not used in an abusive manner, in decid­ seek to pursue and raises the issue whether ing whether to answer the questions referred, they should be declared invalid on the the Court is guided primarily by a functional ground that they are vitiated by a misuse of criterion, that is to say, whether it can pro­ powers. vide a useful answer to the national court.

18 19. In Telemarsicabruzzo, the Court held that the need to arrive at an interpretation of Community law which is useful for the 17. The order for reference gives little infor­ national court requires that court to define mation on the facts of the case. The Council the factual and legislative context of the claims that that runs counter to the principle questions, or at least to explain the factual of judicial cooperation established by Arti­ hypotheses on which they are based. In cle 177. It refers to the judgment of the Vaneetveld the Court held, however, that Court in Telemarsicabruzzo 14 and argues that requirement is less pressing where the that the Court should decline to answer the questions are of such a nature as to enable question referred. the Court to give a useful reply even where the national court has not given an exhaus­ tive description of the legal and factual situ­ ation. 19In that case, the Court answered the questions referred on the ground that the case-file forwarded by the national court and 18. As I stated in my recent Opinion in the submissions of the parties to the main 15 Vaneetveld, it is helpful, and in some cases proceedings gave the Court enough informa­ necessary, for the national court to set out tion to enable it to interpret the rules of succinctly the factual background on the Community law in question in respect of the basis of which the questions referred have situation which was the subject-matter of the arisen. That is not to say, however, that an main proceedings. order for reference which provides little or no information on the facts of the case should necessarily be rejected. Provided that 16 — Sec Case C-343/90 Lourenço Dua [1992] ECR I-4673, para­ graphs 17 to 18 of the judgment. 17 — See Case 104/79 Follia v Novello [1980] ECR 745. 18 — Telemarsicabruzzo, cited in note, paragraph 6 of the judg­ 14 — Joined Cases C-320 to C-322/90 Telemttrsicabruzzo and ment. See also Case C-157/92 Bandiera [1993] ECR I-1085; Others [1993] ECR I-393. Case C-386/92 Monin Automobila v French State [1993] 15 — Case C-316/93 Vaneetveld v SA Le Foyer, Opinion of ECR I-2049. 17 January 1994, paragraphs 6 to 11 of the Opinion. 19 — Judgment of 3 March 1994, paragraph 13.

24. I will examine first the allegation that the Regulation is vitiated by a misuse of powers. I will then examine the allegations that it infringes the principle of proportionality and the principle of equality. I will examine last the argument that it runs counter to the principle of protection of legitimate expecta­ 21. Considerations of procedural economy tions. also support the view that the Court should answer the question referred in this case. If the Court declined to answer it on the ground that the order for reference provides little information on the facts of the case, it is probable that a new reference would be The allegation of a misuse of powers made. That would lead to more delay, would increase costs and would run counter to the objectives of Article 177.

20 — Monin, cited in note . 21 — Case C-368/89 [1991] ECRI-3695.See below, paragraph . 25. Mr Crispoltoni states that he does not 22 — Case C-83/91 Meilicke [1992] ECR I-4871. challenge the underlying objective of the

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Regulation, which is to control Community ties is vitiated by a misuse of powers. It production in tobacco. He states that a refers to Article 39(1)(b) of the Treaty which responsible producer cannot but share the states that one of the objectives of the com­ view that production of tobacco should be mon agricultural policy is to ensure a fair reduced. He claims, however, that the mea­ standard of living for the agricultural com­ sures adopted are ineffective and unsuitable munity, in particular by increasing the indi­ to achieve that objective. vidual earnings of persons engaged in agri­ culture. It also refers to Article 40(3), second paragraph, which states that the common organization shall be limited to pursuit of the objectives set out in Article 39 and shall exclude any discrimination between produc­ ers or consumers within the Community.

24 — Case C-331/88 Fedesa und Ollien [1990] ECR I-4023, paragraph 24 of the judgment; Case 69/83 Lux v Court of 23 — See Regulation No 1114/88, preamble, first recital. See Auditors [1984] ECR 2447, paragraph 30; Case below, paragraph . C-323/88 Serines [1990] ECR I-3027, paragraph 33.

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OPINION OF MR JACOBS — JOINED CASES C-133/93, C-300/93 AND C-362/93

misuse of powers, therefore, it must be the importance of that aim and whether they proved that it was adopted in order to are necessary for its achievement. achieve a purpose other than that for which it was intended.

30. Mr Crispoltoni argues that a measure is 33. It is true, as Mr Crispoltoni points out, vitiated by a misuse of powers not only that if a measure is patently unsuited to the where it pursues a purpose foreign to its objective which the competent institution objectives but also where it is patently seeks to pursue that may affect its legality. 27

34. According to its preamble, the Regula­ tion pursues a twofold objective. It seeks to curb any increase in the tobacco production 32. By contrast, the principle of proportion­ of the Community and at the same time to ality requires the application of an objective discourage the growing of varieties which are 28 test. In order to establish whether a provi­ difficult to dispose of. The preamble also sion of Community law is consonant with refers to the need to 'continue to implement the principle of proportionality, it is neces­ sary to establish whether the means it employs to achieve the aim correspond to 26 — See e. g. Case 66/82 Fromançais v FORMA [1983] ECR 395, paragraph 8 of the judgment; Case 15/83 Den- kavit Nederland v Hoofdproaitktscbap voor Akkerbouw- produkten [1984] ECR 2171, paragraph 25. 27 — Case 138/78 Stoking v Hauptzollamt Hamburg-Jonas 25 — See Hartley, The Foundations of European Community [1979] ECR 713, paragraph 7 of the judgment. Law, Second ed., pp. 415-417. 28 — Regulation No 1114/88, preamble, first recital.

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36. That argument cannot be accepted. It is clear that a support system which seeks to control Community production does not necessarily run counter to the objectives of the Treaty. Measures may be necessary to limit surplus production, and measures may legitimately be taken to limit the quantities 38. In view of the state of the market, if the of products which benefit from Community Council took no measures to control pro­ support. duction with the sole objective of maintain­ ing the income of producers at its existing level, it would risk pursuing only one of the objectives of the common agricultural policy in isolation in such a way as to render impossible the realization of the others. 37. The Greek Government claims that the According to the case-law of the Court, that 32 system of maximum guaranteed quantities runs counter to Article 39. introduced by the Regulation leads effec­ tively to a reduction in the income of pro­ ducers. The Court has held, however, that 30 — See e. g. Joined Cases 279, 280, 285 and 286/84 Ran v Com- the Community institutions have a wide dis­ mission [1987] ECR 1069, paragraph 34 of the judgment. 31 — Case 5/73 Balkan-lmport-Export v Hauptzotlamt Berlin- cretionary power in regard to the common Packhof [1973] ECR 1091, paragraph 24 of the judgment; Case 203/86 Spain v Council [1988] ECR 4563, paragraph 10. 32 — Joined Cases 197 to 200, 243, 245 and 247/80 Lndwig- shafener Walzmrihle v Council and Commission [1981] 29 — Op . cit., second recital. ECR 3211, paragraph 41 of the judgment.

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OPINION OF MR JACOBS — JOINED CASES C-133/93, C-300/93 AND C-362/93

40. It is notable that Community expendi­ ture to subsidize tobacco growing and first 43. Mr Crispoltoni and the Italian Govern­ processing has increased dramatically since ment claim that the Regulation is invalid on the adoption of Regulation 727/70, so much the ground that the system of maximum so that a recent report of the Court of Audi­ guaranteed quantities is unsuitable to achieve tors refers to tobacco as being by far the its objectives. The Italian Government also Community's most expensive crop: the argues that it runs counter to the principle of expenditure in 1993 amounted to no less proportionality because it penalizes indis­ 34 than ECU 1 274 million. criminately all producers for the excess pro­ duction irrespective of whether, and if so the degree by which, they contribute to the max­ 33 — See Commission, The development and future of the com­ imum guaranteed quantity being exceeded. It mon agricultural policy, COM(91) 258, EC Bulletin, Sup­ does not enable the reduction of premiums plement 5 of 1991, pp. 9-12 and especially for the sector of tobacco pp. 27-28. and prices to be adjusted taking into consid­ 34 — See Special Report No 8/93 concerning the common orga­ eration the individual circumstances of each nization of the market in raw tobacco, OJ 1994 C 65, para­ graph 1.1. producer.

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44. The Italian Government points out that discretion which the Community legislature Community production in tobacco increased has in matters concerning the common agri­ between 1988 and 1991, leading to an cultural policy, the legality of a measure increase in Community expenditure. In its adopted in that sphere can be affected only if view, the increase in production occurred it is manifestly inappropriate having regard precisely because of the failure of the Regu­ to the objective which the competent institu­ 37 lation to provide for the allocation of indi­ tion is seeking to pursue. vidual quotas to processing undertakings and producers. The Government and Mr Cri- spoltoni claim that the adoption of Regula­ tion No 2075/92 confirms by implication the unsuitability of the system of maximum guaranteed quantities to attain the objective of controlling production.

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OPINION OF MR JACOBS —JOINED CASES C-133/93, C-300/93 AND C-362/93

49. In any event, at the time when the imum rate permissible, that is to say, 15%. Council decided to introduce the system of The Council was entitled to wait for another maximum guaranteed quantities, it could not year with a view to seeing whether that reasonably be foreseen that it would prove reduction would have an effect on produc­ inadequate. The results of the first two years tion. Once the quantities actually produced during which the system was in force did not in the 1991 harvest were established in 1992, provide conclusive evidence to that effect. and it was clear that the system of maximum With regard to tobacco of the 'Bright' vari­ guaranteed quantities had not succeeded in ety in particular, which is produced by controlling production sufficiently, the Mr Crispoltoni, the maximum guaranteed Council promptly adopted Regulation quantity set for the 1989 harvest was not No 2075/92. exceeded. That quantity was 44 250 tonnes whereas the quantity actually produced was 38 36 685 tonnes.

52. The fact that, after the Regulation was in force for some years, it became clear that it was not sufficient to curb the increase in pro­ 50. By contrast, the maximum guaranteed duction does not mean that that regulation quantities set for the 1990 and for the must be declared invalid. In adopting the 1991 harvests were exceeded. The maximum Regulation, the Council had to make an guaranteed quantity set for the 1990 harvest assessment as to its possible impact on pro­ was 46 750 tonnes whereas the actual quan­ duction and no evidence has been adduced to tity produced was 54 023 tonnes. There was 39 show that its assessment was manifestly therefore an excess of 15.6%. The maxi­ incorrect. mum guaranteed quantity set for the 1991 harvest was 46 750 tonnes whereas the actual quantity produced was 60 094 tonnes. 40 There was therefore an excess of 28.54%.

trary character in that the amount of the pre­ 56. Contrary to what Mr Crispoltoni and mium to which a producer is entitled the Italian Government suggest, under the depends on whether other producers have system of maximum guaranteed quantities it led to the maximum guaranteed quantity is very difficult to identify those producers being exceeded. who contribute to the maximum guaranteed quantity being exceeded. That is because it is not possible to know with certainty what the individual quota of a given producer would have been if the maximum guaranteed quan­ tity fixed for a specific variety had been allo­ cated to producers. It is wrong to assume that in a system of individual quotas the maximum guaranteed quantity for a given 54. As a general rule, the system of maxi­ variety will necessarily be allocated equally mum guaranteed quantities provided for by among all producers of that variety. A Mem­ the Regulation is less restrictive for the indi­ ber State might legitimately favour certain vidual producer than the system of individ­ production regions or certain classes of pro­ ual quotas introduced subsequently by Reg­ ducers. ulation No 2075/92. Under the first system, although the producer runs the risk of suf­ fering a proportionate reduction in prices and premiums in case the maximum guaran­ teed quantity set for a variety is exceeded, he is none the less certain that he can receive support for all his produce, albeit at a reduced rate. He is also certain that, irrespec­ 57. The Italian Government claims, how­ tive of how much the maximum guaranteed ever, that the system of maximum guaranteed quantity is exceeded, the reduction of premi­ quantities suffers from an inherent flaw. It ums and prices will not exceed a certain encourages producers to be careless because threshold. That threshold was set at 15% for they know that the consequences of excess the 1989 to 1991 harvests. By contrast, under production will not affect them individually the system introduced by Regulation but will be spread among all producers. In No 2075/92 a producer receives no support answer to that argument, it is sufficient to for production in excess of his individual point out that, in introducing a measure for quota. the benefit of producers, the Community legislature can expect them to act prudently so as to lead to its success. The failure of producers to do so cannot be a ground for invalidating that measure.

61. There are two material differences between those cases, on the one hand, and 59. Both Mr Crispoltoni and the Italian the present case, on the other hand. Werner Government cite the judgments in Werner Faust and Wünsche concerned the imposition 42 43 Faust and Wünsche. I cannot see, how­ of a charge which the Court found was ever, how those judgments could support the effectively an economic penalty on traders. claim that the Regulation is invalid. That is not the case in the present proceed­ ings. In my view, there is a clear difference between the imposition of a flat-rate eco­ nomic penalty and a sharing in the reduction of subsidies once the maximum guaranteed quantity has been exceeded. The second dif­ ference is that, in Werner Faust and in Wün- sche, the additional amount had been intro­ duced pursuant to a regulation of the 60. In those cases the Court was concerned Council which provided for the application with the validity of Commission Regulation of protective measures only to such an extent (EEC) No 3429/80, Article 1 of which pro­ as was strictly necessary. The Court applied vided for the levy of an additional amount at the principle of proportionality as expressed a fixed rate where preserved mushrooms 44 specifically in the enabling regulation. were released into free circulation in the That is not so in the present case. For the Community in excess of the quantities laid reasons which I gave above, the imposition down in its provisions. The Court held that of a flat-rate reduction in the prices and pre­ miums where the maximum guaranteed

64. The argument of the Greek Government 62. By contrast, the view that the Regulation is closely connected with the argument of is valid is supported by the judgment of the 45 the Italian Government examined above. Court in Zardi. In that case, the Court was Both the Italian Government and the Greek concerned with Article 4b of Council Regu­ Government point to the fact that an excess lation (EEC) No 2727/75, which provided of the maximum guaranteed quantity laid for a levy to be collected from cereal produc­ down for a certain variety results in a pro­ ers for all quantities of cereal placed on the portionate flat-rate reduction in the prices market. The levy would be reimbursed in and premiums with regard to that variety. full only if production in the marketing year Whereas the Italian Government considers in question did not exceed the maximum that that runs counter to the principle of guaranteed quantity. It was argued that it proportionality, the Greek Government con­ was not necessary to require payment of the siders that it results in discriminatory treat­ levy as soon as the cereals were placed on the ment in that it extends the adverse conse­ market since other, less restrictive, means quences of an excess in production to all existed. The Court held, however, that the producers irrespective of whether, and if so collection of the additional levy when the the degree to which, they contribute to that cereals were placed on the market was likely, excess. by reducing the price paid to producers, to persuade them not to increase production during the marketing year and that the Com­ munity legislature had not committed any manifest error of assessment in rejecting 46 other options.

parable situations are treated differently but corresponding to a certain quantity of pro­ also when different situations are treated in cessed tomato products and provided that, if the same way unless such treatment is objec­ that threshold were exceeded, the aid payable 47 tively justified. I do not agree, however, to producers would be reduced for the fol­ that in this case the principle of non­ lowing marketing year, depending on the discrimination has been infringed. extent to which the threshold had been exceeded. It was argued that the reduction in aid made by the Commission, following a finding that the threshold had been exceeded, infringed the prohibition of discrimination. It applied uniformly throughout the Com­ munity so that French processors who were not responsible for the fact that the thresh­ olds were exceeded were treated in the same way as producers in other Member States 66. According to the case-law of the Court, who were so responsible. In response to that 50 the fact that the introduction of a measure argument, the Court held: under the common organization of the mar­ ket may affect producers in different ways, depending upon the particular nature of their production or on local conditions, cannot be regarded as discrimination if the measure is determined on the basis of objective rules, formulated to meet the needs of the general 48 common organization of the market. '... in a common organization of markets with no system of national quotas all Com­ munity producers, regardless of the Member State in which they are based, must together, in an egalitarian manner, bear the conse­ quences of the decisions which the Commu­ nity institutions are led to adopt, in the exer­ cise of their powers, in order to respond to the risk of an imbalance which may arise in the market between production and market 67. In SITPA, 49 the Court examined an outlets.' argument similar to that under consideration. In that case, the Court was concerned with the validity of Council Regulation (EEC) No 989/84 introducing a system of guarantee thresholds for certain processed fruit and vegetable products. That regulation fixed a guarantee threshold for each marketing year 68. The Court took a similar view in Erida- 51 nia. An argument submitted in that case

69. It follows from those judgments that a flat-rate reduction in premiums and prices which affects all producers, in cases where the maximum guaranteed quantity is exceeded, does not infringe the principle of 72. The Greek Government claims that the non-discrimination. failure of the Regulation to provide for the allocation of individual quotas to producers infringes the principle of protection of legit­ imate expectations because it makes it impossible for a producer to plan his pro­ duction. It runs counter to the ultimate objectives of the common organization of the market in tobacco which, under Regula­ tion No 727/70, are to safeguard a fair 70. The system of maximum guaranteed income for producers and to increase that quantities is based on general and objective income. criteria. Under Article 4(5) of the Regulation, in fixing the maximum guaranteed quantity for each variety, the Council must take into account the market requirements and the 52 specific conditions of different regions. Also, with a view to taking into account dif­ ferences in quality in a variety of tobacco 73. As we have already seen, the Regulation depending on the characteristics of the soil does not run counter to the objectives of the and the climate, Regulation No 1251/89 pro­ common agricultural policy laid down in Article 39. Nor is it correct to say that it infringes the principle of protection of legit­ 52 — See Article 4(5), above, paragraph 7. imate expectations.

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76. It will be remembered that in these cases 75. Nor has that principle been infringed by the Pretura Circondariale di Caserta has the failure to provide for the allocation of requested a preliminary ruling on the valid­ individual quotas to producers. The system ity of Regulation No 1738/91. of maximum guaranteed quantities has an inherent degree of uncertainty in that pro­ ducers do not know in advance the exact amount of the prices and premiums which they will receive, that amount being depen­ dent on whether, and to what extent, the maximum guaranteed quantity has been exceeded. That uncertainty, however, is a normal commercial risk which producers can 77. Mr Natale and Mr Pontillo are growers be expected to bear. The requirement to pro­ of tobacco of the 'Burley' variety in the tect legitimate expectations is satisfied by the province of Caserta. They sold their produc­ tion from the 1991 harvest to Donatab Sri, an undertaking which carries out the first processing and market preparation of 53 — Case C-350/88 Delacre and Others v Commission [1990] tobacco. They received, by way of advance ECR I-395, paragraph 33 of the judgment, Case 245/81 Edeka v Germany [1982] ECR 2745, paragraph 27. payment and subject to the lodging of a 54 — Delacre, op. cit., Case 84/78 Tomadini v Amministrazione security, the premium laid down in Arti­ delle Finanze dello Stato [1979] ECR 1801, paragraph 22 of the judgment. cle 3 of Regulation No 727/70. Following the 55 — Delacre, op. cit., paragraph 34 of the judgment, Case finding by the Commission that the maxi­ 230/78 Eridania v Minister of Agriculture and Forestry [1979] ECR 2749. mum guaranteed quantity for tobacco of the

79. By Regulation No 1738/91, the Council 81. If the maximum guaranteed quantity for fixed for the 1991 harvest the norm and the 1991 harvest had been fixed retroactively, intervention prices and the premiums i. e. after producers had to make their deci­ granted to purchasers of leaf tobacco, the sions regarding production for that year, that derived intervention prices for baled tobacco, would indeed run counter to the principle of the reference qualities, the production areas protection of legitimate expectations. In the and the guaranteed maximum quantities and 59 previous Crispoltoni case the Court exam­ amended Council Regulation (EEC) 57 ined the validity of Regulation No 1331/90. In Case C-362/93 the refer­ No 1114/88 and of Council Regulation ring court requests a ruling also on the valid­ (EEC) No 2268/88 by which the Council ity of the regulations implementing Regula­ fixed, for the 1988 harvest, the maximum tion No 1738/91. The national court is guaranteed quantities. Both regulations were presumably referring to Regulation published after farmers had made their deci­ No 2178/92 by which the Commission sions for the 1988 harvest. The Court held established the quantities actually produced that they were invalid in so far as they laid and determined the prices and premiums 5 down a maximum guaranteed quantity for payable for the 1991 harvest. 8 tobacco of the 'Bright' variety harvested in 1988. It came to that conclusion on the

56 — See Regulation No 2178/92. cited in note 10. 57 — OJ 1990 L 132, p. 28. 58 — Cited in note 10. 59 — Case C-368/89, cited above in note 21.

84. It is clear, therefore, that Regulation No 1738/91 cannot be declared invalid on 82. In the present cases, however, the doubts the grounds referred to in the orders for ref­ expressed by the referring court as to the erence. In their submissions to this Court, validity of Regulation No 1738/91 are based however, Mr Natale and Mr Pontillo dispute on an erroneous assumption. As the Council the validity of the contested regulation on and the Commission point out, the maxi­ the ground that that regulation fixed retroac­ mum guaranteed quantity for the variety tively for the 1991 harvest the amount of the 'Burley I', which is in issue in the main pro­ premiums granted to purchasers. ceedings, harvested in 1991 was fixed for the first time not by Regulation No 1738/91 but by Regulation No 1331/90 which was pub­ lished in the Official Journal on 23 May 1990, that is to say, long before producers had to make their decisions for the 1991 har­ vest. That regulation fixed the maximum guaranteed quantity for the 'Burley I' variety 85. They point out that the prices and pre­ 61 miums fixed by Regulation No 1738/91 for at 46 750 tonnes. the 1991 harvest are lower than those which applied by virtue of Regulation No 1331/90 for the 1990 harvest and they claim that that reduction of prices and pre­ miums brought about a deterioration in their legal situation. They argue that the reduction could not have been foreseen either at the time when producers had to make their deci­ 83. It is true that Regulation No 1738/91 sions regarding production for the 1991 har­ amended Regulation No 1331/90 by increas­ vest, that is to say, in November 1990, or at ing the maximum guaranteed quantities for the time when the tobacco had to be sown in the 1991 harvest for certain varieties. How­ seed beds, that is to say, in February 1991. ever, that increase was made in the interests They conclude that, at the time when they of producers, in view of the unification of had to make a decision whether to cultivate tobacco of the 'Burley' variety for the 1991 harvest, the information which they

89. However, it is the national court alone which can determine the questions to be 87. On a reference for a preliminary ruling submitted to this Court, the parties to the the Court will sometimes, with a view to main proceedings being unable to change the 65 assisting the national court, rule on questions scope of those questions or to require the 66 formulated differently from those put by the national court to refer a specific question. national court. For the same purpose, the Article 177 establishes direct cooperation Court may consider provisions of Commu­ between this Court and the national courts nity law to which the national court has not by way of a non-contentious procedure 63 referred in its question. The Court has excluding any initiative of the parties to the gone as far as to provide a ruling on the national proceedings who are merely invited validity of a Community provision where to be heard in the course of that proce­ 67 the national court posed only a question of dure. If the Court examined the issue interpretation: see for example Schwarze v raised by Mr Natale and Mr Pontillo, that 6 Einfuhr- und Vorratsstelle für Getreide. 4 would run counter to the above principles. More importantly, it would run counter to the rights of defence. The information con­ tained in an order for reference not only enables the Court to answer the questions referred but also enables the Governments of 88. In my view, however, in the circum­ stances of this case, it would not be appro­ 65 — Case 44/65 Hessische Knappschaft v Singer [1965] ECR 965, p. 970; Joined Cases C-134 and C-135/91 Kerafina- Keramische mid Finanz-Holding et Vioktimatiki [1992] ECR I-5699, paragraph 16 of the judgment. 63 — Case C-241/S9 SARPP [1990] I-1695, paragraph 8 of the judgment. Case C-315/92 Verband Sozialer Wettbelieb eV 66 — See Case 283/81 CILFIT v Ministry of Health [1982] v Clinique Laboratories SNC and Estéé Lauder Cosmetics ECR 3415, paragraph 9 of the judgment. GmbH, judgment of 2 February 199-í, paragraph 7. 67 — Sec e. g. Hessische Knappschaft v Singer, cited in note, 64 — Casc 16/65 [1965] ECR 877. p. 971.

90. The opportunity for Member States and the Community institutions to make written submissions must be safeguarded in particu­ lar where the Court is asked to rule on the validity of a Community act. In such a case, 92. In any event, I do not accept the argu­ save perhaps in a wholly exceptional case ment that the fixing of prices and premiums where a Community act is patently invalid, it by Regulation No 1738/91 for the 1991 har­ would not be appropriate to deny to the vest runs counter to the legitimate expecta­ institution which is the author of the act the tions of the producers concerned. right to make submissions. It follows that the Court should only examine the issues which expressly or by implication arise from the order for reference and on which the institution in question could be expected to comment.

93. First, it is clear that, under the system of maximum guaranteed quantities, the exact 68 — Joined Cases 141 to 143/81 [1982] ECB. 1299, paragraph 6 of the judgment. amount of the prices and premiums which

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In Case C-133 / 93 the question put by the Pretura Circondariale di Perugia should be answered as follows:

Consideration of the matters examined has disclosed no factor of such a kind as to affect the validity of Council Regulation ( EEC ) No 1114/88 and the regulations adopted for its implementation .

69 — See Council Regulation (EEC) No 1252/89, OJ 1989 L 129, p. 17, Annex FV. 70 — See Regulation No 1331/90, cited in note. Annex IV. 71 — Regulation No 1738/91, cited in note, Annex IV.

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OPINION OF MR JACOBS — JOINED CASES C-133/93, C-300/93 AND C-362/93

In Cases C-300/93 and C-362/93 the questions put by the Pretura Circondariale di Caserta should be answered as follows: