C-160/98

ERIDANIA

O P I N I O N OF ADVOCATE GENERAL MISCHO delivered on 15 February 2001 1

1. The dispute between Eridania SpA (here- intervention price for white sugar and, inafter 'Eridania'), a sugar producer in consequently, an increased price for sugar Italy, and Azienda Agricola San Luca di beets. 3 The second question concerns the Rumagnoli Viannj before the Giudice di validity of Council Regulation (EEC) Pace di Genova (Magistrate's Court, No 1785/81 of 30 June 1981 on the com- Genoa), concerning the sum payable by mon organisation of the markets in the Eridania to Azienda Agricola San Luca for sugar sector 4(hereinafter 'the basic regu- sugar beet purchased during the marketing lation'), amended by Council Regulation year 1996/97, which the Court was called (EC) No 1101/95 of 24 April 1995, 5 upon to help settle by means of a pre- which provides for a system of derived liminary ruling, resulting in the judgment intervention prices and higher prices for of 6 July 2000 in Case-289/97, Eridania, 2 sugar beet in deficit areas, a system known re-emerged in the marketing year 1997/98 as regionalisation. and gave rise to new proceedings before the same national court.

Court to the questions referred, whether it vention price to be set for that Member should maintain all the questions for pre- State for white sugar — which were met in liminary ruling referred in the context of the marketing year 1996/97, were no the dispute regarding the marketing year longer met in the marketing year 1997/98. 1997/98 or, instead, withdraw all or some However, I see no reason for the national of them. court to insist that the Court should once again consider claims regarding Regulation No 1188/97, such as those pertaining to the date of adoption of the regulation fixing the derived intervention prices for white sugar for a particular marketing year and to the statement of reasons which must accompany a regulation of this kind, which 5. The referring court answered that it had are in no way linked to economic con- no intention of withdrawing the questions ditions affecting the market, claims which referred to the Court, stating that the were held to be unfounded when the Court, questions submitted to the Court in Case following a request by that same national C-160/98 refer to a different marketing court, examined the validity of the regu- year and, accordingly, to a different regu- lation governing the same system of fixing lation. Indeed, it is undeniable that the prices for the previous marketing year. validity of Council Regulation (EC) No 1580/96 of 30 July 1996 fixing, for the 1996/97 marketing year, the derived intervention prices for white sugar, the minimum prices for A and B beet, and the amount of compensation for storage costs, 6 does not automatically mean that Regulation No 1188/97, which has the same purpose, but for the marketing year 1997/98, is also valid. 7. All the more reason, in my view, for considering that the claims against even the establishment of the system of derived price intervention under the basic regulation which the Court set aside in Eridania, cited above, do not merit further examination.

(2) If the answer to the first question is in 'Where a question referred to the Court for the affirmative, is Regulation (EEC) a preliminary ruling is identical to a ques- No 1785/81 of 30 June 1981 (OJ 1981 tion on which the Court has already ruled, L 177, p. 4), as subsequently amended, where the answer to such a question may and in particular Articles 3(1), 5(3) and be clearly deduced from existing case-law 6(2) thereof, valid, and consequently is or where the answer to the question admits Article 1(f) of Regulation (EC) of no reasonable doubt, the Court may, No 1188/97 valid, in the light of the after informing the court or tribunal which arguments more fully set out in part referred the question to it, hearing any II — "The alternative plea in law" of observations submitted by the persons the section of this order entitled referred to in Article 20 of the EC Statute, "Law"?' Article 21 of the Euratom Statute and Article 103(3) of these Rules and hearing the Advocate General, give its decision by reasoned order in which, if appropriate, reference is made to its previous judgment or to the relevant case-law.' 11. For the reasons set out above, I con- sider that it is appropriate to examine only the first question which seeks to establish whether the Council was justified in class- ing Italy as a deficit area for the marketing 10. The two questions referred by the year 1997/98 in Regulation No 1188/97. national court to the Court for a ruling are as follows:

'(1) Is Regulation (EC) No 1188/97 of 12. All the other points included in the 25 June 1997 (OJ 1997 L 170, p. 3), questions referred by the Giudice di Pace di in particular Article 1(f) thereof, valid, Genoa in Eridania cited above have been especially in the light not only of answered; I have no reason to believe that Article 3(4) and (5) of Regulation the judgment is not well founded and, in

my view, the Court, when giving its ruling the Commission notes in its observa- in this case, should invite the national court tions — there is 'a misunderstanding as to refer thereto. regards the system for setting prices', and that the classification by the Council of an area as a deficit area for a given marketing year is effected not on the basis of meas- ured production and consumption, but according to forecasts which can be reason- 13. Did the Council act unlawfully when it ably made, given the data available, as to stated, in the preamble to Regulation what the levels of production and con- No 1188/97, that 'a deficit supply situation sumption will be during the year in ques- is to be foreseen in the areas of production tion. in Italy' and in deciding, in Article 1 of that regulation that, '[f]or the deficit areas of the Community, the derived intervention price for white sugar shall be fixed, per 100 kilograms, at: [...] (f) ECU 65.53 for all the areas in Italy', with the result that, as provided by Article 6 of the basic Regu- lation, Italian sugar producers would have to buy beet at a price upwardly adjusted in accordance with Article 5(3) of the basic 16. It must be noted, in passing, that if regulation? prices were decided before the date — laid down in Article 3(4) of the basic regu- lation, namely that before 1 August preced- ing the year in which the year begins on 1 July — which, since Eridania, is how- ever not to be mandatory, those forecasts would be made without any concrete 14. I shall recall briefly — since both my information as to what production during Opinion in Case C-289/97 cited above and the marketing year concerned might be. the judgment in that case acknowledge these factors — that there is a deficit, within the meaning of the basic regulation, where the total available production falls short of consumption and that available production corresponds to the total quan- tities of A sugar and B sugar produced during the marketing year, plus the carry- forward of C sugar effected in accordance with the Community rules. 17. Prices are fixed when, in most Member States, the beet produced during the mar- keting year preceding the one in question have not yet been harvested and when, therefore, there is no indication of what will be sown, on the basis of which 15. Indeed, it appears that on the part of precisely production in the marketing year both Eridania and the national court — as concerned might be calculated.

23. As the Council quite rightly points out, it does not have the administrative means to allow it to collect the data itself to enable it to compare foreseeable consumption 20. Accordingly, as we shall subsequently with foreseeable production. see, it is futile to wish, as Eridania does, to dispute classification by the Council of an area as a deficit area on the basis of data which were only available after the date when the Council carried out such classifi- cation and even only after the marketing year had begun, that is when it was 24. The Council must therefore base its imperative that prices should already have decision on data communicated to it by the been fixed, in order to avoid serious Commission. However, the Commission disruption in the functioning of the com- does not have any greater resources allow- mon organisation of the markets in the ing it to collect the information directly sugar sector. from operators in the sector and, in par- ticular, to verify such information. For this reason Article 39 of the basic regulation provides that Member States and the Com- mission forward to each other the data necessary for application of the regulation. 21. For the marketing year 1997/98 the That system of collaboration is regulated Council fixed a derived intervention price by C o m m i s s i o n R e g u l a t i o n (EC) for white sugar in Italy, and therefore No 779/96 of 29 April 1996 laying down considered on 25 June 1997, only a few detailed rules for the application of the

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basic regulation as regards communications tonnes of carry-over from the previous in the sugar sector. 7 Chapter IV of the marketing year. This estimate, provided regulation sets out in detail the information by the Italian Government, dated from the that the Member States must send to the meeting of the Management Committee for Commission regarding production and Sugar of 9 April and was based on a sowing consumption of sugar, and lays down the area of 275 000 ha, with a yield of white timetable for such notification. sugar calculated at between 5 and 5.5 tonnes per hectare.

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30. This communication from the Italian apparently did, on figures communicated Government was the reply to a request by the Italian Government, as both Erid- from the Commission for updated data to ania and various professional organisations the Member States at the meeting of the bringing together sugar producers had, on board of management of 11 June. many occasions, duly informed the Com- mission of the totally unrealistic, even fanciful, nature of production forecasts contained in communications by the Italian Government.

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36. As well as those letters of protest, fixing the price for the marketing year Eridania has produced the minutes of the 1997/98 were being prepared, the farmers, work of the joint group of the Consultative as in previous years, strongly objected to Committee on Sugar which met on any proposal that Italy should no longer be 14 April 1997. part of the system applicable to deficit areas. Proof of this, in particular, is pro- vided by the minutes of the meeting of the joint group of the Consultative Committee on Sugar of 14 April 1997, submitted by Eridania, as well as by the communication 37. It is clear from them that during that addressed to the Commission on 23 June meeting, the representative from the Italian 1997, and submitted by the Commission as sugar industry indicated that he considered an annex to its observations (annex II). the sowing area in Italy as presented by the Commission to have been patently under- estimated and stated 'that it was impossible that the Commission could have been in a position to propose the régionalisation of the price of sugar in Italy given that Italy is in surplus' (annex 20 of Eridania's obser- vations). 40. The Commission, which had responsi- bility for presenting proposals, and the Council, with the task of deciding the prices, were thus confronted with estimates communicated by the Italian Government, approved by one group of economic oper- 38. Like the Council and the Commission, I ators who found them to be manifestly in would not seek to deny, in view of the their interests, and contested by another information produced by Eridania, that the group with opposed interests. Community institutions were perfectly aware of the fact that the production estimates communicated by Italy clearly appeared to be overestimates to Italian or even European, sugar producers.

44. Undeniably, there might appear to be cause for concern — on which Eridania 47. This frustration might perhaps have naturally bases one of its arguments — been attenuated if the revised figures from that whereas the Italian Government stated the Italian Government had been communi- on 16 June that it was not in a position to cated, for example, only at the end of July. substitute new figures for those produced in But, would the Italian Government not, April, whilst announcing that those figures quite rightly, have been criticised if, when it should quite probably be adjusted had available new figures at the beginning upwards, it should then be able on 3 July of July, it had deliberately deferred com- (10 days after the Council fixed the derived munication of those figures to the Com- intervention price for white sugar for Italy, mission in order to avoid the unfortunate based on a foreseeable deficit situation) to coincidence constituted by the adoption of communicate to the Commission a new prices which were based on a deficit in forecast for available production cor- production and the publication, several responding exactly to the sum of the A days later, of figures ruling out the possi- and B quotas assigned to Italy. bility of such a deficit.

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48. A situation of this kind would have C-285/94 Italy v Commission [1997] ECR constituted a serious case of withholding of I-3519, paragraph 23)' (paragraph 48). information and a breach of the obligations contained in Regulation No 779/96.

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of the Italian sugar producers, in their letter examine them. I can, nevertheless, briefly of 10 July, to amend R e g u l a t i o n demonstrate that, in any event, the claims No 1188/97. cannot be upheld.

53. These figures on their own are not sufficient, on the basis of the case-law cited above, to qualify the classification of Italy 56. Eridania criticises the choices made by as a deficit area as an error. the Council regarding Community market supply and contests the suitability of those choices in connection with the Commu- nity's undertakings in the framework of the General Agreement on Tariffs and Trade (GATT). I hardly need emphasise that, in so doing, Eridania loses sight of the fact that those choices, which are within the broad margin of discretion of the Council in the running of the common agricultural 54. Be that as it may, I would acknowledge policy, unless there is manifest error, fall that when the Council made its decision, on outwith the preview of the Court. the basis of data communicated to it by the Commission, which in turn had received the data from the Italian Government, it was justified in reckoning on a deficit in Italy, and therefore in fixing a derived intervention price for white sugar for Italy.

57. Eridania makes the same mistake when it submits that the régionalisation applied to Italy is a breach of the principle of Community preference. In its judgment of 55. Before concluding, I should point out 14 July 1994, Greece v Council, 9 the that, in its observations, Eridania also Court ruled that 'Community preference claims that Regulation No 1188/97 is is not in any case a legal requirement the invalid because it causes disruption in the violation of which would result in the market and breaches the principle of Com- invalidity of the measure concerned'. munity preference. However, those claims are not made by the referring court so, as the Council observes, I am not required to 9 — C-353/92 ECR I-3411, paragraph 50.