C-56/94

SCAC v ASSOCIAZIONE DEI PRODUTTORI ORTOFRUTTICOLI

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 29 June 1995*

In Case C-56/94,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunale di Piacenza (Italy) for a preliminary ruling in the proceedings pending before that court between

SCAC Sri

and

JUDGMENT OF 29. 6. 1995 — CASE C-56/94

Advocate General: D. Ruiz-Jarabo Colomer, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— SCAC Sri, by Fausto Capelli, of the Milan Bar, and Luigi Tassi, of the Piacenza Bar,

— ASIPO, by Francesco Sicilia, of the Parma Bar,

— the Council of the European Union, by Arthur Bräutigam, Legal Adviser, and Antonio Lucidi, of its Legal Service, acting as Agents,

1 By order of 5 February 1994, received at the Court on 9 February 1994, the Tri- bunale di Piacenza (Piacenza District Court) referred to the Court for a prelimi-

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nary ruling under Artide 177 of the EC Treaty two questions on the interpretation and validity of Article 1(2) of Council Regulation (EEC) N o 668/93 of 17 March 1993 on the introduction of a limit to the granting of production aid for processed tomato products (OJ 1993 L 72, p. 1).

2 Those questions were raised in proceedings between SCAC Sri (hereinafter 'SCAC') and Associazione dei Produttori Ortofrutticoli (hereinafter 'ASIPO') concerning the performance of a contract concluded on 31 March 1993, in which ASIPO had undertaken to supply to SCAC, for the 1993/94 marketing year, a quantity of fresh tomatoes intended to be processed into products other than con- centrate or peeled tomatoes, that quantity corresponding to the average of the quantities of those products produced by SCAC in the 1990/91 and 1991/92 mar- keting years.

3 That average exceeded by 622 400 kg the quota allocated to SCAC by the Italian Ministry of Agriculture and Forestry, by Note N o E-318 of 25 March 1993, for the 1993/94 marketing year as part of the division of quotas between the Italian processing undertakings in accordance with Article 1(2) of Regulation (EEC) N o 668/93. The abovementioned contract expressly stated that SCAC considered itself unfairly penalized by the system for allocating quotas provided for in that regu- lation and that it was awaiting a ruling by the Court of Justice on its validity.

'1. Must Article 1(2) of Council Regulation (EEC) N o 668/93 be interpreted as meaning that when a tomato-processing undertaking to which a certain quota for the production of peeled tomatoes had been allocated transfers 25% of the fresh tomatoes from the "peeled tomatoes" quota to the "concentrate" or "other products" quota, such a transfer affects subsequent marketing years, thus entailing that each undertaking is allocated the quota of fresh tomatoes intended for "peeled tomatoes" which it received in the preceding marketing year, increased however by a quota of fresh tomatoes intended for "concen- trate" or "other products" in proportion to the percentage of fresh tomatoes actually processed into "concentrate" or "other products" under the above- mentioned transfer of 2 5 % carried out during the preceding marketing year, and involving a corresponding decrease in the percentage quotas of fresh tomatoes (intended for "concentrate" or "other products") allocated to the other processing undertakings?

2. If the preceding question is answered in the affirmative, regard being had to the judgment of the Court of Justice in Joined Cases C-143/8 8 and C-92/89 Zuckerfabrik Siiderdithmarschen and Zuckerfabrik Soest , and to the fact that serious doubts must be entertained as to the validity of Article 1 (2) of Council Regulation (EEC) N o 668/93 of 17 March 1993 and that the plaintiff appears to be under threat of serious and irreparable harm, is Article 1(2) of that regulation, providing for a progressive increase in the processing quota for fresh tomatoes allocated to undertakings producing "peeled tomatoes" to the detriment of undertakings producing "concentrate" or "other products"

io Such a limit was introduced with effect from the 1993/94 marketing year by Regu- lation N o 668/93.

n The Umit is applied in a two-stage operation.

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JUDGMENT OF 29. 6. 1995 — CASE C-56/94

i2 Firstly, for each producing Member State, Article 1(1) of Regulation N o 668/93 fixes the quantities, expressed in tonnes of fresh tomatoes, for which aid can be granted, according to categories of processed tomato products, namely 'concentrate', 'peeled tomatoes' and 'other products'. The quantities for Italy are broken down as follows: 'tomato concentrate': 1 655 000 tonnes; 'tinned whole peeled tomatoes': 1 185 000 tonnes; and 'other tomato products': 453 998 tonnes.

1 3 Secondly, under the first subparagraph of Article 1(2) of Regulation N o 668/93, the above quantities are to be divided 'by the Member States between the process- ing undertakings in proportion to the average quantities actually produced by each of them during the three marketing years preceding the marketing year for which the aid is fixed'.

— a transfer of up to 5% of quantities of tomato concentrate, expressed in quan- tities of fresh tomatoes, to the quantities allocated for the other products,

— a transfer of up to 5% of the quantities of other tomato products, expressed in quantities of fresh tomatoes, to the quantities allocated for concentrate.'

i6 Article 1(4) of Regulation N o 668/93 states:

'Where all the quantities defined in paragraph 1 have not been allocated, the remainder shall be divided fairly between the processing undertakings referred t o in paragraph 2, taking account in particular of those undertakings which use new production technology.'

i7 Finally, Article 2 of Regulation N o 668/93 provides that, for the first three mar- keting years of application of the regulation, the quantities produced for the 1992/93 marketing year are not to be taken into account for the calculation of the average of the quantities produced.

is The detailed rules for the application of Regulation N o 668/93 were laid down b y Commission Regulation (EEC) N o 1794/93 of 30 June 1993 (OJ 1993 L 163, p. 23).

2i The premise on which the national court's first question is based is incorrect. The interpretation of the second subparagraph of Article 1(2) suggested by SCAC and the consequences it attributes thereto are clearly wrong.

22 The second subparagraph of Article 1(2) must be read in connection with the first subparagraph, from which it is apparent that the quotas allocated to the Member States are to be divided between the processing undertakings in proportion to the average quantities actually produced by each of them during the reference period.

23 In those circumstances, and subject t o the special provisions in Article 1(3) of Regulation N o 668/93 on recently established undertakings and Article 1(4) on the failure to use up the maximum quantity allocated to the Member State in question, only the quantities actually produced can be used as a reference for allocating quo- tas in a given category of products. It follows that the transfer possibilities

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between the 'concentrate', 'peeled tomatoes' and 'other products' categories cannot have the effect of allowing processing undertakings to claim production aid for quantities larger than those actually processed in the past. Any other interpretation would moreover have the consequence of frustrating the main object of the pro- vision, namely to avoid overproduction in the sector.

27 The Court has consistently held that that prohibition of discrimination is only a specific expression of the general principle of equality in Community law, which requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C-309/89 Codorniu v Coundl [1994] ECR 1-1853, paragraph 26).

28 The fact that a measure adopted within the framework of the common organiza- tion of a market may affect producers in different ways, depending upon the par- ticular nature of their production, does not constitute discrimination if that meas- ure is determined on the basis of objective rules, which are formulated to meet the needs of the general common organization of the market (see Case C-311/90 Hierl v Hauptzollamt Regensburg [1992] ECR 1-2061, paragraph 19).

29 In the present case, as stated above, the imposition of limits on production aid for processed tomato products, by seeking to avoid distortions of the market, pursues one of the objectives of the common agricultural policy mentioned in Article 39(l)(c) of the Treaty. The transfer possibilities provided for in the second subpara- graph of Article 1(2) of Regulation N o 668/93 introduce some flexibility in this respect in the management of the quotas under the common organization of the market.

30 The fact that Regulation N o 668/93 does not envisage the possibility for undertak- ings to transfer part of the 'concentrate' or 'other products' quotas to the 'peeled tomatoes' quotas, whereas the converse possibility does exist, is objectively explained by the need to use fresh tomatoes of high quality and in a perfect state of conservation in the manufacture of peeled tomatoes. As the Commission has pointed out, tomatoes used to make concentrate and other products may be of lower quality.

33 The costs incurred by the Council and the Commission of the European C o m m u - nities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

O n those grounds,

T H E C O U R T (Sixth Chamber),

in answer to the questions referred to it by the Tribunale di Piacenza by order of 5 February 1994, hereby rules:

1. Article 1(2) of Council Regulation (EEC) N o 668/93 of 17 March 1993 on the introduction of a limit to the granting of production aid for processed tomato products must be interpreted as meaning that, in the event of a transfer of fresh tomatoes by a processing undertaking during a marketing

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R. Grass F. A. Schockweiler Registrar President of the Sixth Chamber

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